Not to be Subject to Cruel and Unusual Treatment or Punishment

Section 12 of the Charter of Rights and Freedoms guarantees everyone the right not to be subject to cruel or unusual treatment or punishment. The purpose of section 12 is to protect the dignity of individuals inside Canada.

What is the Right not to be Subject to Cruel and Unusual Treatment or Punishment?

Section 12 of the Charter guarantees the right not to be subject to cruel and unusual treatment or punishment. Specifically, section 12 prohibits treatment or punishment that is considered grossly disproportionate in the circumstances. Grossly disproportionate treatment or punishment is considered cruel and unusual. The threshold to meet the standard of cruel and unusual is quite high. Treatment or punishment cannot be merely excessive or disproportionate; it must be grossly disproportionate.

In determining whether treatment or punishment is grossly disproportionate, the court will consider all relevant factors including but not limited to the nature and circumstances of the offence, the personal circumstances and characteristics of the offender, the gravity of the offence, the effect of the punishment on the offender, whether the punishment is necessary to achieve a valid legal purpose, whether the sentence is comparable with sentences for other similar crimes, whether the sentence is proportionate to other sentences, whether the punishment is rooted in recognized sentencing principles and whether there are adequate alternatives.

In the Supreme Court case of R. v. Smith, the Court indicated that an individual’s section 12 right has been violated when at least one of the following things is true:

1. The character or duration of the punishment would outrage the public conscience or degrade human dignity.
2. The punishment goes beyond what is necessary to achieve the valid social aim associated with the punishment, having consideration for the purposes of the punishment and adequacy of alternative options.
3. The punishment is imposed arbitrarily and not applied on a rational basis in accordance with ascertained standards.

Punishment refers to situations where an individual is sentenced to a period of incarceration or ordered to pay a fine. Treatment on the other hands includes things like a prisoner being ordered to solitary confinement or the overall conditions of imprisonment. If an individual is being held in unfit conditions, that is considered treatment.

Example

Person A is charged and convicted of various firearms offences and sentenced to a lengthy period of custody. During his time in custody, person A is routinely placed in solitary confinement for extended periods of time for minor infractions and sometimes for no reason at all. While in solitary confinement person A has no one to speak with for weeks on end and the lights are kept on 24 hours a day. Music is played on repeat over a loudspeaker throughout the night. Solitary confinement is arbitrarily used in the prison and in many circumstances person A had done nothing to warrant the treatment. The treatment person A is receiving inside prison is cruel and unusual and a violation of his section 12 Charter right.

Section 12 is often used to challenge mandatory minimum sentences enacted by the legislature. These challenges are successful where the mandatory minimum forces judges to impose sentences that are grossly disproportionate to the appropriate sentence.

When is the Right Triggered?

The right to be free of cruel and unusual treatment or punishment is triggered as soon as an individual is to be subject to treatment or punishment by the government.

What happens if the Right is Violated?

Where an individual believes their section 12 Charter right has been, or is being violated, they may launch a Charter challenge. Section 12 Charter applications are often used to challenge mandatory minimum sentences. Where such an application is successful, the court will strike down the mandatory minimum sentence and declare it of no force and effect.

Section 12 Charter challenges may also be launched in situations where the treatment of an individual is cruel or unusual. In these cases, where the application is successful, the court may order a remedy pursuant to section 24(1) of the Charter.

Cases

R. v. Smith, [1987] 1 SCR 1045

In the case of R. v. Smith, the Supreme Court of Canada, in discussing section 12 of the Charter, indicated that a punishment or treatment will be considered cruel or unusual where it meets at least one of the following characteristics:

1. The character or duration of the punishment would outrage the public conscience or degrade human dignity.
2. The punishment goes beyond what is necessary to achieve the valid social aim associated with the punishment, having consideration for the purposes of the punishment and adequacy of alternative options.
3. The punishment is imposed arbitrarily and not applied on a rational basis in accordance with ascertained standards.

Canadian Civil Liberties Association v. Canada, 2019 ONCA 243 (CanLii)

In the case of Canadian Civil Liberties Association v. Canada, the Ontario Court of Appeal addressed the use of administrative segregation in prisons and whether prolonged use rose to the level of cruel and unusual punishment. The Court indicated that placing a prisoner in administrative segregation for more than 15 days at a time was violation of section 12 of the Charter. This is especially true for prisoners suffering from mental illness.

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