Cruel and Unusual Punishment: BC Bud and Canada’s Living Tree Constitution

Charter interpretation is energized by and must take account of changing social values and expectations.

Carter v. Canada (Attorney General), 2015 SCC 5 at para. 47; Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 41, 44; R. v. Nur, 2011 ONSC 4874 at para. 49 (varied on other grounds, 2013 ONCA 677; aff’d 2015 SCC 15); Al-Isawi at paras. 51-52.

Values are not immutable. They change in response to changing social conditions, social sentiments and expectations, evolving human knowledge, and technological advancement. For this reason, the Charter must adapt to changes in social context and not remain frozen in the past.

R. v. Elliott, 2017 BCCA 214, at para. 36.

As famously stated by Viscount Sankey in the Persons Case, the constitution is a living tree capable of growth and expansion within its natural limits.

Edwards v. A.G. of Canada [1930] A.C. 124.

Section 12 of the Charter: Cruel and Unusual Treatment or Punishment

Section 12 of the Charter provides as follows:

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

Where a law impermissibly infringes on this right, it is, to the extent of the inconsistency, of no force or effect: s. 52 of the Constitution Act, 1982.

The principles governing a s. 12 Charter challenge to legislation are now well-established. Those principles were comprehensively restated by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, and R. v. Lloyd, 2016 SCC 13.

See also R. v. Dickey, 2016 BCCA 177; R. v. Oud, 2016 BCCA 332; and R. v. Al-Isawi, 2017 BCCA 163 at paras. 15–21, in which aspects of the s. 12 framework were also summarized by the Court of Appeal for British Columbia.

Challenges to mandatory minimum sentences as constituting cruel and unusual punishment

Section 12 challenges to mandatory minimum sentencing provisions involve a two-step analysis.

1.      The court must first determine, at least in rough terms, what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code.

2.      Second, the court must, having defined the parameters of a fit and proportionate sentence, consider whether imposition of the mandatory minimum sentence would be grossly disproportionate to the offence and the circumstances surrounding its commission. If so, the provision violates s. 12 of the Charter.

Nur at para. 23.

The jurisprudence sets a “high bar” for what constitutes cruel and unusual punishment under s. 12. Establishing that a sentencing provision constitutes cruel and unusual punishment requires a Charter applicant to demonstrate that the sentence is “grossly disproportionate” to the punishment that is appropriate.

R. v. Smith, [1987] 1 S.C.R. 1045 at 1072 -1073; Nur at para. 39.

The test for demonstrating that a sentence is grossly disproportionate is a “stringent” and “demanding” one: Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at 1417; R.. v. Morrisey, 2000 SCC 39 at para. 70.

It is not met by showing that the sentence is “merely excessive” or “demonstrably unfit”.

Smith at 1072; R. v. McDonald (1998), 40 O.R. (3d) 641 (Ont. C.A.).

The sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians would view the punishment as “abhorrent and intolerable”.

R. v. Ferguson, 2008 SCC 6 at para. 14.

Deference to Parliament—is the punishment an “an outrage to the standards of decency”

While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

R. v. Lloyd, 2016 SCC 13.

The Reasonable Foreseeability Test

On a section 12 challenge, the Court is to consider whether the least morally culpable conduct caught by the sentencing provision will result in a grossly disproportionate sentence.

Even if the sentencing provision being challenged does not result in a grossly disproportionate sentence on the offender before the court, the provision will still violate s. 12 of the Charter if reasonably foreseeable applications of the law result in the imposition of grossly disproportionate sentences on others.

Nur at para. 77.

The test of reasonable foreseeability is not confined to situations that are likely to arise in the day-to-day application of the law. It includes consideration of hypothetical circumstances that are foreseeably captured by the least morally culpable conduct caught by the provision:

S. 12 and the decision of the Crown not to invoke the mandatory minimum

The existence of prosecutorial discretion as to whether to invoke a legislated mandatory minimum sentence does not insulate the provision from review under s. 12 of the Charter:

Nur at paras. 92-97.

Section 12, the Living Tree, and BC Bud

Assessing whether the mandatory minimum sentence is grossly disproportionate requires consideration of widespread changes in social attitudes towards the prohibited activity.

R. v. Elliott, 2017 BCCA 214, at para. 37.

In R. v. Elliott, the prohibited activity was small-scale, non-commercial marijuana production and use. The Court of Appeal concluded that section 7(2)(b)(i) of the Controlled Drugs and Substances Act, which mandates a six-month term of imprisonment that is engaged even in low-level cases, violates s. 12 of the Charter, and  is of no force or effect under s. 52 of the Constitution Act, 1982.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).