F. Cruel and Unusual Punishment

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Section 12 of the Charter provides:

Everyone has the right not to be subject to any cruel and unusual treatment or punishment.

Laws requiring minimum sentences for specified offences have been the exception rather than the rule in Canadian criminal law, though their use has increased in recent years. In Smith v R,169the Supreme Court struck down a minimum punishment of seven years’ imprisonment for importing narcotics. Too wide a range of activities was caught by the prohibition against importing drugs, from large-scale trafficking of dangerous drugs by organized crime to the importation of a small quantity of marijuana for personal consumption. While the Court did not settle on a precise definition of "cruel and unusual," a majority found that imposing a minimum sentence of such length would, in many instances, be so grossly disproportionate to the gravity of the offence committed by the accused as to outrage standards of decency and thus offend the guarantee under section 12. The Court was not willing to trust the matter to prosecutorial discretion to charge minor offenders with simple possession, since that would amount to an unacceptable delegation of decision-making authority in a situation where a fundamental right was at issue.

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Other challenges to mandatory minimum sentences have, however, failed. The Supreme Court has upheld mandatory life imprisonment without eligibility for parole for twenty-five years for first degree murder170and without eligibility for parole for ten years for second degree murder.171In both cases, the Court has stressed that the penalty was not grossly disproportionate given the seriousness of the offence.

The Court has also upheld a mandatory minimum penalty of seven days’ imprisonment for knowingly driving with a suspended licence172 and a mandatory ten-year firearm prohibition upon a drug conviction. In the latter case, the Court stressed both that the prohibition was related to the legitimate sentencing goal of protecting the public and that the Criminal Code allowed the judge to make exceptions when firearms were required for employment or sustenance reasons.173The Court has also upheld mandatory minimum penitentiary terms when firearms are used to commit serious offences. In R v Morrisey, it upheld a minimum sentence of four years’ imprisonment for criminal negligence causing death with a firearm174and in R v Ferguson, it upheld a mandatory minimum sentence of four years’...

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