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Interpretation of Section 12: Cruel and Unusual Punishment

发布时间:2017-03-26
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Interpretation of Section 12: Cruel and Unusual Punishment

By simply mentioning the words “cruel and unusual punishment”, images of medieval torture devices immediately spring into the mind; however, this colorful, romanticized representation is a stereotype. One of the very first mentions of “cruel and unusual punishment” in Canada was in the Miller et al v. The Queen case of 1977.[1] In this case reference to sections 1 and 2 of the pre-Charter Bill of Rights was applied in deciding that the death sentence for murder was indeed constitutional.[2] A lasting influence of this case on section 12 of the Canadian Charter of Rights and Freedoms can be found in the decision that “‘cruel and unusual’ in s. 2(6) are to be read conjunctively and refer to ‘treatment or punishment’”.[3] Incorporating definitions of “cruel and unusual” from the pre-Charter Miller et al v. The Queen case set stable legal reference for the interpretation of “cruel and unusual punishment” in section 12 of the Charter of Rights and Freedoms.

The Canadian Charter of Rights and Freedoms replaced the Bill of Rights in 1960 and was officially enacted in 1982, serving to enhance and protect individual liberties.[4] It is one of the defining documents of Canadian history. The Charter is entrenched in the Constitution as a defined promise between denizens and government for the sustainment of “fundamental freedoms, democratic rights, mobility rights, legal rights, and equality rights”.[5] As such, it is a fundamental part of our daily lives. Sections 7-12 of the Charter are particularly important. These legal rights directly regulate the relationship between individuals and the law, allowing for direct public influence and openness of government[6]. Section 12 of the Charter’s legal rights particularly stands out in protection against “any cruel and unusual treatment or punishment” against citizens.[7] This section defines the essence of ethical human treatment while serving as a governmental check and balance of punishment. The success of section 12 has been proven throughout the years of the Charter. From this, we can conclude that Canadian courts have done historically well in maintaining balance between cause for suffering and rightful legal punishment through the application of section 12 of the Canadian Charter of Rights and Freedoms.

The case of Regina v. Smith was the first to successfully apply the principles of protection against cruel and unusual punishment in reference to section 12. In 1987, the appellant, Edward Dewey Smith, “pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act”.[8] He was to be charged with eight years of imprisonment by the County Court of Vancouver, however the “seven‑year minimum sentence imposed by s. 5(2) of the Narcotic Control Act” was challenged “as being inconsistent with [sections] 7, 9 and 12 of the Charter”.[9] Justice Macdonald of the Court of Appeal for British Columbia was “not persuaded that [s. 43] violates either s. 7 or s. 9 of the Charter” and upheld the County Court of Vancouver’s sentence of eight years.[10] The Supreme Court concluded as per Chief Justice Dickson, Justice La Forest, and Justice Lamer that s. 5(2) was in violation of s. 7, 9, and 12 of the Charter of Rights and Freedoms, however still imposed an eight year sentence unto Smith.[11] Justice McIntyre upheld Smith’s eight year sentence mainly due to a consideration of his personal characteristics; Smith “was a multiple offender and had imported enough narcotics that it was not cruel and unusual to sentence him for over seven years. The standard for cruel and unusual punishment should be based on public outrage and the degradation of the offender’s dignity, none of which was found”.[12] In relation to section 12 of the Charter, the seven-year minimum imprisonment was deemed as “cruel and unusual punishment” due to a “gross disproportionality” between the sentence and the severity of the crime; further, the breach by s. 5(2) was not justified as per s. 1 of the Charter.[13] The right against cruel and unusual punishment is a negative right of citizens, and by allowing the seven year minimum sentence to pass, the government would be legally infringing on that right.[14] This infringement would be in direct violation of the purpose and nature of the Charter of Rights and Freedoms, which is to “protect aggressively the civil liberties of individuals from infringement by legislatures”.[15] For example, if a man were to smuggle one ounce of cocaine for personal use, he would previously receive the same seven-year minimum sentence as a man that smuggles large quantities for drug trafficking. In common application, this would be akin to suspending both a student that was tardy twice and a student that skipped classes 90% of the time. This suspension would be incongruent to the offense of tardiness. In both cases, the governing body would be infringing the rights of the individual with minor offenses in relation to the individual with major offenses. Because of this logical reasoning, I believe the ruling by the respondent, the Queen, was correct and just. It is absolutely unreasonable for two people of extremely varying cases to receive the same seven year punishment. There should be flexibility in the law, and the sentence for imprisonment should vary in proportion to the offense so as to not infringe upon section 12 of the Charter. In the very first landmark case referencing section 12, R. v. Smith, the Canadian Supreme Court did well in regulating balance between the severity of drug trafficking and the sentence for imprisonment.

Adherence to section 12 of the Charter successfully carried on into the 21st century. In 2001, one of the defining cases of Canadian history, R. v. Latimer, debated the constitutional validity of the sentence for second degree murder with Robert William Latimer as the appellant and the Queen as the respondent.[16] This case was on appeal from the Court of Appeal for Saskatchewan on the basis of violation of s. 12 Charter rights, jury nullification, and defense of necessity.[17] Mr. Latimer’s daughter, Tracy, suffered cerebral palsy and epilepsy.[18] To end his daughter’s suffering, Mr. Latimer carried her to his truck, where he killed her by carbon monoxide poisoning from the exhaust pipes on October 23, 2003.[19] When charged for second degree murder, the Court had to rationalize “whether imposition of mandatory minimum sentence for second degree murder constitutes ‘cruel and unusual punishment’ in this case, so that accused should receive constitutional exemption from minimum sentence” of life imprisonment with no chance for parole in ten years.[20] In conclusion, the Supreme Court decided the minimum sentence was not in fact a violation of his section 12 Charter rights, as his deprivation of his daughter’s life was of utmost violation, and superseded his Charter violation.[21] There was proportionality in the mandatory ten year sentence in relation to the offense of his second degree murder. Latimer’s arguments for defense of necessity and jury nullification were ruled as invalid.[22] Although his negative rights and Charter rights were violated by the government, these violations were overshadowed by his offence of depriving life unjustly from his daughter. Therefore, subjecting him to a ten year minimum sentence was not cruel and unusual punishment, but rather justified execution of the punishment for his crime. If a woman had committed second degree murder of her son and did not have to serve the mandatory ten year sentence, whereas Latimer did, then cruel and unusual punishment as per discrimination would be valid. A violation of section 12 would then be justified, as the Charter “protects individuals from discriminatory actions by the government”; however, Latimer was not discriminated against.[23] Personally I believe that, once again, Section 12 was upheld, and the government was just, in that Latimer received a proportional sentencing that was neither cruel nor unusual. The punishment of a minimum ten years imprisonment fit the crime of second degree murder by meeting “the public standard of acceptability”.[24] Canada continued to deliver objective, just rulings in relation to Section 12 of the Charter of Rights and Freedoms despite changing public attitudes provided in a jump from the 20th to the 21st century. This lawful adherence was clearly demonstrated in the Supreme Court’s handling of the R. v. Latimer case.

One of the most recent applications of referral to section 12 of the Charter of Rights and Freedoms can be found in “the Spanking Case” of 2004, in which the Canadian Foundation for Children, Youth and the Law brought a case fighting for the eradication of s. 43 of the Criminal Code of Canada to the Supreme Court: the respondent was the Attorney General of Canada.[25] The applicant, the CFCYL, is an organization built upon providing indirect and direct legal protection and representation to children.[26] The applicant had appealed to the Ontario in a process that stretched from 1999-2002, however was unsatisfied with Justice McComb, Catzman, Douherty, and Goudge’s ruling that s. 43 was constitutional, and that the Supreme Court should set “clearly defined parameters to guide teachers, parents, and caregivers”.[27] The appellant wanted to Court “to remove the existing authorization of the use of ‘reasonable force’ in disciplining children [as per s. 43 of the Code] and explicitly prohibit all forms of violence against children, however light, within the family, in schools and in other institutions where children may be placed”.[28] They argued that s. 43 violated s. 7, s. 12, and s. 15(1) of the Charter of Rights and Freedoms and the United Nations Conventions on the Right of the Child.[29] As a response, Justice Binnie (in accordance with Justice Deschamps among others) decided that the subjection of children to spanking was not considered a case of cruel and unusual punishment nor unconstitutional.[30] This was decided although s. 43 allowed for varying severity of spanking that may or not have been proportional to the justification for punishment due to its vague outlining of using “reasonable force” when spanking children. A parent or teacher was legally allowed to severely beat a child for minor issues such as, for example, stealing a cookie from the cookie jar before dinner. Although s. 43 was not considered unconstitutional in a 6-3 decision, the vague outlining of using “reasonable force” in disciplinary action did not meet with the broad public standard of acceptability.[31] As a result, the Supreme Court set guidelines of clarification for the interpretation of “reasonable force”, following the recommendation by the Ontario Court of Appeal. Spanking was only to be applied to children ages 2-12, could not be done out of anger, and could not be completed using belts or force to the head; further, “teachers [were no longer] permitted to strike students, but… limited force [was] allowed in order to restrain students during a violent outburst”.[32] Children were further protected by the Supreme Court’s amendments to s. 43. Although citizens such as Ailsa Watkinson, who began the challenge in 1995, believe “[s. 43] perpetuates the notion that children are second-class citizens", I do not believe this is so.[33] Children must naturally be conditioned- whether negatively or positively- into societal rules of conduct through the natural process of socialization. Spanking is an effective part of this process. It is not cruel nor unusual punishment, as it is justified disciplinary action by responsible adults. Although the past interpretation of s. 43 was vague and allowed high degrees of spanking for the sake of discipline (and influences from other factors such as anger), the Supreme Court addressed the ambiguity of “reasonable force” in response to the 2004 case of the Canadian Foundation for Children, Youth and the Law v. Canada. The Supreme Court set reasonable parameters. This is of utmost importance, clearly highlighting the children as equal citizens that must not be subject to cruel and unusual punishment just as their post-pubescent counterparts. In the very recent case of the Canadian Foundation for Children, Youth and the Law v. Canada, the Canadian Supreme Court once again upheld the s. 12 Charter right against cruel and unusual punishments- this time in application to children, one of the most vulnerable of groups in society.

As historically proven with the landmark cases of R. v. Smith, R. v. Latimer, and the Canadian Foundation for Children, Youth and the Law v. Canada, Canada has done well in maintaining balance between punishment and offense in adherence to s. 12 of the Charter of Rights and Freedoms. By objectively interpreting and applying the law, all choices were made with the utmost sense and sensibility. History repeats itself, and with such a strong record of human rights preservation, it can be assumed that Canada will continue in the path of righteousness for many years to come.

Works Cited

Al-Hassani, Amir. “Overview of the Canadian Charter of Rights and Freedoms.” Handout. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

Al-Hassani, Amir. “Rights and Freedoms in Ontario.” Note. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

Hovius, Berend. "The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights: Prospects for the Charter."McGill LAW JOURNAL28.1 (1982): 50, 54, 55. Web. 20 Oct. 2014. <http://lawjournal.mcgill.ca/en/issue/1420>.

"Landmark Case: Mandatory Minimum Sentence for Murder R. v. Latimer." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/581>.

"Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

"R. v. Latimer." R. v. Latimer. Scott Phelps and Mason, 1 Jan. 2008. Web. 27 Oct. 2014. <http://www.spmlaw.ca/scdla/latimer3.htm>.

"R. v. Smith (1987)." Wikipedia. Wikimedia Foundation, 23 Oct. 2014. Web. 28 Oct. 2014. <http://en.wikipedia.org/wiki/R._v._Smith_(1987)>.

"R. v. Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC)." CanLII. The Federation of Law Societies of Canada, 31 Mar. 1987. Web. 28 Oct. 2014. <http://www.canlii.org/en/ca/scc/doc/1987/1987canlii64/1987canlii64.html>.

"Section 7-14: Legal Rights."Cultural Diversity and Rights. Government of Canada, 1 May 2013. Web. 21 Oct. 2014. <http://www.pch.gc.ca/eng/1356636395105/1356636488152>.

"Supreme Court Judgments." Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2115/index.do?r=AAAAAQAdY2FuYWRpYW4gZm91bmRhdGlvbiBmb3IgeW91dGgAAAAAAQ>.

"Supreme Court Judgments."R. v. Latimer. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1836/index.do>.

"Supreme Court Judgments."Miller Et Al. v. The Queen. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2671/index.do>.

"Supreme Court Judgments."R. v. Smith (Edward Dewey). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/227/index.do>.

"Supreme Court Upholds Spanking Law." 30 Jan. 2004. CBC News. Web. 27 Oct. 2014. <http://www.cbc.ca/news/canada/supreme-court-upholds-spanking-law-1.496454>.

"The Canadian Charter of Rights and Freedoms." Cultural Diversity and Rights. Government of Canada, 9 Jan. 2014. Web. 21 Oct. 2014. <http://www.pch.gc.ca/eng/1355260548180/1355260638531>

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[1] "Supreme Court Judgments." Miller Et Al. v. The Queen. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2671/index.do>.

[2] "Supreme Court Judgments." Miller Et Al. v. The Queen. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2671/index.do>.

[3] "Supreme Court Judgments." Miller Et Al. v. The Queen. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2671/index.do>.

[4] Al-Hassani, Amir. “Overview of the Canadian Charter of Rights and Freedoms.” Handout. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

[5] "The Canadian Charter of Rights and Freedoms." Cultural Diversity and Rights. Government of Canada, 9 Jan. 2014. Web. 21 Oct. 2014. http://www.pch.gc.ca/eng/1355260548180/1355260638531

[6] Al-Hassani, Amir. “Overview of the Canadian Charter of Rights and Freedoms.” Handout. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

[7] "Section 7-14: Legal Rights."Cultural Diversity and Rights. Government of Canada, 1 May 2013. Web. 21 Oct. 2014. <http://www.pch.gc.ca/eng/1356636395105/1356636488152>.

[8] Supreme Court Judgments." R. v. Smith (Edward Dewey). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/227/index.do>.

[9] "Supreme Court Judgments."R. v. Smith (Edward Dewey). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/227/index.do>.

[10]

[11] "R. v. Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC)." CanLII. The Federation of Law Societies of Canada, 31 Mar. 1987. Web. 28 Oct. 2014. <http://www.canlii.org/en/ca/scc/doc/1987/1987canlii64/1987canlii64.html>.

[12] "R. v. Smith (1987)." Wikipedia. Wikimedia Foundation, 23 Oct. 2014. Web. 28 Oct. 2014. <http://en.wikipedia.org/wiki/R._v._Smith_(1987)>.

[13] "Supreme Court Judgments." R. v. Smith (Edward Dewey). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/227/index.do>.

[14] Al-Hassani, Amir. “Rights and Freedoms in Ontario.” Note. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

[15] Hovius, Berend. "The Legacy of the Supreme Court of Canada's Approach to the Canadian Bill of Rights: Prospects for the Charter." McGill LAW JOURNAL 28.1 (1982): 50, 54, 55. Web. 20 Oct. 2014. <http://lawjournal.mcgill.ca/en/issue/1420>.

[16] "Supreme Court Judgments." R. v. Latimer. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1836/index.do>.

[17] "Supreme Court Judgments." R. v. Latimer. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1836/index.do>.

[18] "Landmark Case: Mandatory Minimum Sentence for Murder R. v. Latimer." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/581>.

[19] "Landmark Case: Mandatory Minimum Sentence for Murder R. v. Latimer." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/581>.

[20] "Supreme Court Judgments." R. v. Latimer. Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1836/index.do>.

[21] "R. v. Latimer." R. v. Latimer. Scott Phelps and Mason, 1 Jan. 2008. Web. 27 Oct. 2014. <http://www.spmlaw.ca/scdla/latimer3.htm>.

[22] "Landmark Case: Mandatory Minimum Sentence for Murder R. v. Latimer." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/581>.

[23] Al-Hassani, Amir. “Rights and Freedoms in Ontario”. Note. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

[24] Al-Hassani, Amir. “Overview of the Canadian Charter of Rights and Freedoms.” Handout. Bayview Secondary School. Richmond Hill, Ontario. n.d. Print.

[25] "Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[26] "Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[27] "Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[28] "Supreme Court Judgments." Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2115/index.do?r=AAAAAQAdY2FuYWRpYW4gZm91bmRhdGlvbiBmb3IgeW91dGgAAAAAAQ>.

[29] "Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[30] "Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[31] Supreme Court Judgments." Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). Lexum, 10 Oct. 2014. Web. 21 Oct. 2014. <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2115/index.do?r=AAAAAQAdY2FuYWRpYW4gZm91bmRhdGlvbiBmb3IgeW91dGgAAAAAAQ>.

[32] Landmark Case: The Spanking Case - Testing the Validity of Section 43 of the Criminal Code of Canada - The Canadian Foundation for Children, Youth and the Law (CFCYL) v. Canada." Ontario Justice Education Network, 25 Oct. 2013. Web. 21 Oct. 2014. <http://ojen.ca/resource/592>.

[33] "Supreme Court Upholds Spanking Law." 30 Jan. 2004. CBC News. Web. 27 Oct. 2014. <http://www.cbc.ca/news/canada/supreme-court-upholds-spanking-law-1.496454>.

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