Section Twelve of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter
and of the Constitution of Canada
, is a legal rights section that protects an individual's freedom from cruel and unusual punishment
s in Canada
. The section has generated some case law, including the essential case R. v. Smith
(1987), in which it was partially defined, and R. v. Latimer
(2001), a famous case in which Saskatchewan
farmer Robert Latimer
protested that his long, mandatory minimum sentence for the murder of his disabled daughter was cruel and unusual.
The section states:
. The Court, however, could and did follow previous interpretations of cruel and unusual punishments in pre-Charter case law, namely Miller and Cockriell v. The Queen
(1977). Cruel and unusual punishment was thus defined as punishment "so excessive as to outrage standards of decency" or "grossly disproportionate to what would have been appropriate." Justice Lamer
, writing for the Court in R. v. Smith, went on to provide some guides as to how to measure proportionality, listing as special considerations the seriousness of the crime committed by the individual, the "personal characteristics" of the individual, and the various types of punishments available that could effectively "punish, rehabilitate or deter this particular offender or to protect the public from this particular offender."
Later, the Court would add in R. v. Goltz
(1991) and R. v. Morrisey
(2000) that how the individual would be impacted by the punishment in practise, the objectives of the punishment, whether other kinds of punishments could be used instead, and how other types of criminals are punished could be relevant to a section 12 test. Still, the test is not strict but rather deferential to the government. In Steele v. Mountain Institution (1990), Justice Cory wrote for the Court that a judicial discovery of a cruel and unusual punishment should be "rare and unique". The Parliament of Canada
's ability to judge the appropriateness of various punishments is not absolute, but courts are generally encouraged to exercise restraint in correcting Parliament.
dealer was deemed so long as to be cruel and unusual under the Charter. While Parliament had the power to make laws in which a certain crime could result in a minimum length of time that must be served in prison, this could be unconstitutional if the law prescribes that same minimum length of time for a type of crime that "covers many substances of varying degrees of danger." Specifically, the law did not consider how much cocaine was involved and why the rights claimant was acquiring it.
The Court again considered whether a minimum prison sentence perceived as lengthy would be cruel and unusual in the case R. v. Latimer. Latimer, who had murdered his disabled daughter, argued the 10 years that he would definitely serve (he could be in prison for longer if denied parole
) was so long as to be cruel and unusual. The basis of this argument was that the murder was committed as a type of mercy killing. The Court in this case decided the sentence was not unconstitutional, noting the crime "resulted in the most serious of all possible consequences, namely, the death of the victim." While Latimer had been convicted of second as opposed to first-degree murder, the Court added that "second degree murder is an offence accompanied by an extremely high degree of criminal culpability." In this section 12 case, the principle of mens rea
was considered vital.
case United States v. Burns
, the Supreme Court declined to decide whether capital punishment
would classify in Canadian law as a cruel and unusual punishment and therefore a direct violation of section 12. They did, however, state that execution certainly "engages 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, as well as the scepticisms that it really would decrease crime rates. The Court also took into consideration that Parliament had already abolished the death penalty within Canada itself.
is inherently cruel and unusual under section 12. As the Supreme Court wrote in Suresh v. Canada (Minister of Citizenship and Immigration)
(2002), torture is "so inherently repugnant that it could never be an appropriate punishment, however egregious the offence." The Court noted that the "prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal." This view of torture goes back to R. v. Smith, in which Justice Lamer said that "some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment
."
In addition to violating section 12, in Suresh it was found that torture violates rights to liberty
and security of person
under section 7
, and shocks the conscience
. Therefore, Canada may not extradite people to countries where they may face torture.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
and of the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, is a legal rights section that protects an individual's freedom from cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
s in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. The section has generated some case law, including the essential case R. v. Smith
R. v. Smith (1987)
R. v. Smith , [1987] 1 S.C.R. 1045 is a leading Supreme Court of Canada decision. The Court struck down a mandatory seven year sentence requirement for the importation of drugs as a violation of the right against cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights...
(1987), in which it was partially defined, and R. v. Latimer
R. v. Latimer
R. v. Latimer [2001] 1 S.C.R. 3, was a decision by the Supreme Court of Canada in the controversial case of Robert Latimer, a Saskatchewan farmer convicted of murdering his disabled daughter Tracy Latimer. The case had sparked an intense national debate as to the ethics of what was claimed as a...
(2001), a famous case in which Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
farmer Robert Latimer
Robert Latimer
Robert William "Bob" Latimer , a Canadian canola and wheat farmer, was convicted of second-degree murder in the death of his daughter Tracy . This case sparked a national controversy on the definition and ethics of euthanasia as well as the rights of people with disabilities, and led to two...
protested that his long, mandatory minimum sentence for the murder of his disabled daughter was cruel and unusual.
The section states:
Definition
R. v. Smith was the first case in which section 12 was considered by the Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. The Court, however, could and did follow previous interpretations of cruel and unusual punishments in pre-Charter case law, namely Miller and Cockriell v. The Queen
Miller and Cockriell v. The Queen
R. v. Miller and Cockriell [1977] 2 SCR 680 is a leading Canadian Bill of Rights decision of the Supreme Court of Canada where the Criminal Code of Canada provisions relating to the death penalty were challenged as a violation of the right against "cruel and unusual" punishment under section 2 of...
(1977). Cruel and unusual punishment was thus defined as punishment "so excessive as to outrage standards of decency" or "grossly disproportionate to what would have been appropriate." Justice Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
, writing for the Court in R. v. Smith, went on to provide some guides as to how to measure proportionality, listing as special considerations the seriousness of the crime committed by the individual, the "personal characteristics" of the individual, and the various types of punishments available that could effectively "punish, rehabilitate or deter this particular offender or to protect the public from this particular offender."
Later, the Court would add in R. v. Goltz
R. v. Goltz
R. v. Goltz, [1991] 3 S.C.R. 485 is a leading constitutional decision of the Supreme Court of Canada on the right against cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms...
(1991) and R. v. Morrisey
R. v. Morrisey
R. v. Morrisey, [2000] 2 S.C.R. 90 is a leading Supreme Court of Canada decision on the right to be free of cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms...
(2000) that how the individual would be impacted by the punishment in practise, the objectives of the punishment, whether other kinds of punishments could be used instead, and how other types of criminals are punished could be relevant to a section 12 test. Still, the test is not strict but rather deferential to the government. In Steele v. Mountain Institution (1990), Justice Cory wrote for the Court that a judicial discovery of a cruel and unusual punishment should be "rare and unique". The Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
's ability to judge the appropriateness of various punishments is not absolute, but courts are generally encouraged to exercise restraint in correcting Parliament.
Prison sentences
If longer than necessary, to a degree that can be considered "grossly disproportionate," certain prison sentences can be considered cruel and unusual and therefore unconstitutional under section 12. In R. v. Smith itself, the prison sentence of an alleged cocaineCocaine
Cocaine is a crystalline tropane alkaloid that is obtained from the leaves of the coca plant. The name comes from "coca" in addition to the alkaloid suffix -ine, forming cocaine. It is a stimulant of the central nervous system, an appetite suppressant, and a topical anesthetic...
dealer was deemed so long as to be cruel and unusual under the Charter. While Parliament had the power to make laws in which a certain crime could result in a minimum length of time that must be served in prison, this could be unconstitutional if the law prescribes that same minimum length of time for a type of crime that "covers many substances of varying degrees of danger." Specifically, the law did not consider how much cocaine was involved and why the rights claimant was acquiring it.
The Court again considered whether a minimum prison sentence perceived as lengthy would be cruel and unusual in the case R. v. Latimer. Latimer, who had murdered his disabled daughter, argued the 10 years that he would definitely serve (he could be in prison for longer if denied parole
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
) was so long as to be cruel and unusual. The basis of this argument was that the murder was committed as a type of mercy killing. The Court in this case decided the sentence was not unconstitutional, noting the crime "resulted in the most serious of all possible consequences, namely, the death of the victim." While Latimer had been convicted of second as opposed to first-degree murder, the Court added that "second degree murder is an offence accompanied by an extremely high degree of criminal culpability." In this section 12 case, the principle of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
was considered vital.
Capital Punishment
In the 2001 extraditionExtradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
case United States v. Burns
United States v. Burns
United States v. Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms...
, the Supreme Court declined to decide whether capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
would classify in Canadian law as a cruel and unusual punishment and therefore a direct violation of section 12. They did, however, state that execution certainly "engages 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, as well as the scepticisms that it really would decrease crime rates. The Court also took into consideration that Parliament had already abolished the death penalty within Canada itself.
Torture
TortureTorture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
is inherently cruel and unusual under section 12. As the Supreme Court wrote in Suresh v. Canada (Minister of Citizenship and Immigration)
Suresh v. Canada (Minister of Citizenship and Immigration)
Suresh v. Canada , [2002] 1 S.C.R. 3 is a leading decision of the Supreme Court of Canada in the areas of constitutional law and administrative law...
(2002), torture is "so inherently repugnant that it could never be an appropriate punishment, however egregious the offence." The Court noted that the "prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal." This view of torture goes back to R. v. Smith, in which Justice Lamer said that "some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment
Corporal punishment
Corporal punishment is a form of physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable...
."
In addition to violating section 12, in Suresh it was found that torture violates rights to liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
under section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
, and shocks the conscience
Shocks the conscience
Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.-United States:...
. Therefore, Canada may not extradite people to countries where they may face torture.