Fault and Punishment Under Sections 7 and 12 of the Charter
York University - Osgoode Hall Law School
Supreme Court Law Review (2d), Vol. 40, 2008
THE CHARTER AND CRIMINAL JUSTICE, J. Cameron & J. Stribopoulos, eds., pp. 553-591, LexisNexis Canada Ltd., 2008
The late Antonio Lamer took the lead, under the Charter, in constitutionalizing the substantive criminal law. In that regard, the B.C. Motor Vehicle Reference may be his most important Charter decision: there, he proposed an institutional theory of substantive review for section 7 – a guarantee which, it is agreed, was intended only to have procedural content. Not only was Justice Lamer’s theory of review unsound, the section 7 fault jurisprudence which followed the MVR was no more than a modest success. Yet, analysis shows how the section 7 cases are linked to section 12 – and its prohibition on cruel and unusual treatment or punishment – by a shared concern for proportionality in the relationship between fault and punishment. After undertaking a critique of the section 7 jurisprudence, this article proposes that a substantive interpretation of that guarantee be abandoned, and suggests that questions of proportionality – whether arising from a fault deficit or the nature of the punishment – be addressed by section 12.
Number of Pages in PDF File: 40
Keywords: Canadian Charter, S. 7, S. 12, fault, punishment, porportionality
JEL Classification: K30, K33Accepted Paper Series
Date posted: May 15, 2010
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