Section Twelve of the Canadian Charter of Rights and Freedoms

Section 12 of the Canadian Charter of Rights and Freedoms, as part of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential case R. v. Smith (1987), in which it was partially defined, and R. v. Latimer (2001), a famous case in which Saskatchewan farmer Robert Latimer protested that his long, mandatory minimum sentence for the murder of his disabled daughter was cruel and unusual.

The section states:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

R. v. Smith was the first case in which section 12 was considered by the Supreme Court of Canada. The Court, however, could and did follow previous interpretations of cruel and unusual punishments in pre-Charter case law, namely Miller and Cockriell v. The Queen (1977). Cruel and unusual punishment was thus defined as punishment "so excessive as to outrage standards of decency" or "grossly disproportionate to what would have been appropriate." Justice Lamer, writing for the Court in R. v. Smith, went on to provide some guides as to how to measure proportionality, listing as special considerations the seriousness of the crime committed by the individual, the "personal characteristics" of the individual, and the various types of punishments available that could effectively "punish, rehabilitate or deter this particular offender or to protect the public from this particular offender."

Later, the Court would add in R. v. Goltz (1991) and R. v. Morrisey (2000) that how the individual would be impacted by the punishment in practise, the objectives of the punishment, whether other kinds of punishments could be used instead, and how other types of criminals are punished could be relevant to a section 12 test. Still, the test is not strict but rather deferential to the government. In Steele v. Mountain Institution (1990), Justice Cory wrote for the Court that a judicial discovery of a cruel and unusual punishment should be "rare and unique". The Parliament of Canada's ability to judge the appropriateness of various punishments is not absolute, but courts are generally encouraged to exercise restraint in correcting Parliament.

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