Cruel and Unusual Punishment – Section 12 of the CharterAndrew Captan
Section 12 of the Charter provides that: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
In order for a punishment to contravene s. 12, that punishment must be considered “cruel and unusual”. The leading Supreme Court of Canada case on the meaning of “cruel and unusual” is R. v. Smith, 1987 CanLII 64 (SCC).
The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s.12 of the Charter is…”whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the State may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.
The test of “gross disproportionality” involves a punishment that is viewed as being “more than merely excessive”.