APPLICATION OF THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE UNDER THE CANADIAN BILL OF RIGHTS

• NCJ Number: 69329
• Journal: McGill Law Journal Volume: 24 Issue: 2 Dated: (1978) Pages: 161-195
• Author(s): S BERGER
• Date Published: 1978
• Length: 35 pages
• Publication Format: Article
• Language: French; English
• Country: Canada

Annotation

SECTION 2(B) OF THE CANADIAN BILL OF RIGHTS IS DISCUSSED IN TERMS OF HISTORICAL ORIGINS, THREE RELATIVE CANADIAN CASES, AND OBSERVATIONS ON THE EFFICACY OF REMEDIES AVAILABLE TO VICTIMS OF CRUEL AND UNUSUAL PUNISHMENT.

Abstract

SECTION 2(B) OF THE CANADIAN BILL OF RIGHTS, ENACTED IN 1960, PROHIBITS THOSE WHO ARE RESPONSIBLE FOR THE EXECUTION OF FEDERAL LAWS FROM IMPOSING CRUEL OR UNUSUAL TREATMENT OR PUNISHMENT. IT DIRECTS THE COURTS TO INQUIRE INTO THE QUALITY OF THOSE TREATMENTS AND PUNISHMENTS WHICH HAVE BEEN IMPOSED OR WHICH ARE AUTHORIZED BY LEGISLATION. THE FIRST REFERENCE TO CRUEL AND UNUSUAL PUNISHMENT OCCURS IN THE ENGLISH BILL OF RIGHTS OF 1689. ENGLISH COURTS TREATED THE CLAUSE AS A STATEMENT OF PRINCIPLE, NOT AS A CHECK ON THE PARLIAMENT. AMERICAN COURTS WERE MORE CAUTIOUS IN THEIR INTERPRETATION. THUS, INFLICTION OF THE DEATH PENALTY IN AMERICA WAS NOT CONSIDERED TO BE CRUEL AND UNUSUAL PUNISHMENT PER SE UNTIL RECENTLY. THE PROSPECTS OF APPLYING SECTION 2(B) IN ORDER TO PROVIDE LEGAL RECOURSE OF THOSE WHO ARE VICTIMIZED BY IMPOSITION OF CRUEL AND UNUSUAL TREATMENTS AND PUNISHMENTS ARE NOT ENCOURAGING. BY THE 1975 DECISION IN 'R. V. MILLER AND COCKRIELL' THE SUPREME COURT OF CANADA IMPLIED THAT PARLIAMENT COULD ADOPT A MANDATORY DEATH SENTENCE AGAIN WITHOUT FEAR THAT IT WOULD BE RENDERED INOPERATIVE IN THE COURTS. SIMILARLY, THE 1976 DECISION IN 'REGINA V. SHAND' DID NOT FURTHER THE RIGHTS OF THE VICTIM OF CRUEL AND UNUSUAL PUNISHMENT WITH REGARD TO MANDATORY MINIMUM SENTENCES. THE RIGHTS OF INMATES SUBJECTED TO SOLITARY CONFINEMENT WERE SIMILARLY RULED UPON IN THE 1975 CASE OF 'MCCANN V. THE QUEEN.' AT PRESENT, SECTION 2 (B) APPEARS DESTINED TO FOLLOW THE LEAD OF ITS PREDECESSOR IN THE ENGLISH BILL OF RIGHTS; IF THE INTERPRETATION GIVEN TO IT BY THE SUPREME COURT OF CANADA IS FOLLOWED, IT WILL SERVE AS NO MORE THAN A STATEMENT OF PRINCIPLE. IN ORDER FOR THE PRINCIPLE TO BE EFFECTIVE, AN EXTRAORDINARY EFFORT ON THE PART OF THE GOVERNMENT AND THE PRIVATE AND PUBLIC SECTORS IS REQUIRED. FOOTNOTES ARE INCLUDED.