Cruel and Unusual Punishment

R. v. Smith

Narcotic Control Act mandated a minimum seven years imprisonment for the offence of "importing narcotics" (quantity was not relevant, only the fact of importing a narcotic).

Question: does this mandatory minimum constitute "cruel and unusual punishment"?

Answer: not necessarily. But it could, and the way the law is written, it certainly will.

Question: what makes a punishment cruel and unusual?

Answer: it has to be so inappropriate as to outrage standards of decency. "Grossly disproportionate."

OK. Question: how do we know when something is "grossly disproportionate."

Answer: four considerations

1) gravity of the offence

2) personal characteristics of the offender

3) particular circumstances of the case

4) effect of sentence in terms of punishing, rehabilitating or deterring the offender, or in terms of protecting the public

A question of balancing these against the punishment

Note: NATURE of punishment must be considered, not just its length

* 20 years imprisonment too much for 1st offence in case of property crime

* 3 months will also be too much if it is to be served in solitary confinement

Some punishments are simply unacceptable

* corporal punishment, e.g whipping

* lobotomy

* castration

Curiously: arbitrariness does not make a punishment cruel or unusual

Arbitrariness is covered by s. 9 of Charter: forbids arbitrary detention or imprisonment

Conclusion: 7 year minimum in Narcotic Control Act will lead to punishments that are grossly disproportionate,violate the Charter

But wait: Can minimum sentence provision be saved by s.1 of the Charter?

Punishment will deter people from importing narcotics

But, same result could be achieved by less drastic measures.Therefore, not demonstrably justified in a free and democratic society (see Oakes coming soon to an overhead near you)

R. v. Latimer

Facts of the case: Robert Latimer, convicted of second degree murder in the death of his daughter, Tracy; Tracy suffered from cerebral palsy; suffered great pain; Latimer claimed that he killed his daughter in order to prevent her suffering; sentenced to life imprisonment, no parole prior to ten years; jury recommended he be eligible for parole after serving only 1 year.

Claim: in this case the mandatory minimum constitutes cruel and unusual punishment.

Seeking a constitutional exemption.

NOT a complaint that the PUNISHMENT itself is cruel and unusual, but rather that it is cruel and unusual in this particular case.

How do we decide the question? See Smith

Four criteria

* personal characteristics of Mr. Latimer

* the gravity of his offence

* the particular circumstances of his case

* effect or consequences of sentence conferred

[what sentence would appropriate in terms of a)punishment, b)rehabilitation or c) deterrence of Latimer, or d) in terms of protecting the public from Latimer]

Judgment:

1) a nice man

2) a serious offence

3) mitigating circumstance: motivated by his wish to end his daughter's suffering

4) a) yes, a need to punish

b) no need to rehabilitate

c) no need to deter

d) no need to protect the public

Furthermore, both public and the jury reacted strongly to the original sentence: evidence of "gross disproportion"

Conclusion: punishment is unconstitutional