NCJ Number
76633
Journal
Ottawa Law Review Volume: 10 Issue: 1 Dated: (1978) Pages: 1-34
Date Published
1978
Length
34 pages
Annotation
Cruel and unusual punishment or treatment provisions of the criminal code are considered in light of the Supreme Court of Canada's decision in 'Regina v. Miller and Cockriell' (1976) and significant earlier cases.
Abstract
In 'Miller,' the Supreme Court of Canada unanimously decided that the death penalty provisions which had been in the criminal code did not constitute cruel and unusual punishment contrary to section 2(b) of the Canadian Bill of Rights. Although Parliament had abolished the death penalty by the time the decision was rendered, the ruling was disappointing because only the Chief Justice indicated that he had arrived at his conclusion by careful analysis and cogent reasoning rather than by brief summation. The Supreme Court of Canada dealt with cruel and unusual punishment or treatment in the 1968 case of 'Magda v. The Queen.' In that decision, it was found that treatment afforded the petitioner during World War II internment was not subject to provisions of the Canadian Bill of Rights. The lower court ruling in 'McCann v. The Queen' (1975) is the only application of the cruel and unusual treatment or punishment clause which has not been reversed by a higher court. In light of the fact that some assessment of severity is required by the Canadian Bill of Rights, that the onus of proof is on the one alleging that the punishment is contrary to those rights, and that the judgment of the court must be based on more than a mere difference of opinion with Parliament as to appropriateness, several tests of cruel and unusual punishment are either inadequate or should be applied with considerable caution. Inadequate tests would include whether the punishment goes beyond what is necessary to achieve a legitimate penal aim, whether the punishment is unacceptable to a large segment of the population, or whether the punishment could be applied upon a rational basis in accordance with ascertained or ascertainable standards. Two other tests should be applied with considerable caution: whether the punishment has no value in terms of social purpose and whether the punishment must be in accord with public standards of decency or propriety. It is clear that the cruel and unusual clause must be read as a compendious norm resulting from a mutual determination of the two terms. The court must assess a treatment or punishment with regard to the suggested tests. If it is so excessive or out of proportion as to be unusually severe in the sense of degrading human dignity, then it must be held to be in violation of the Canadian Bill of Rights. The article includes 168 footnotes.