Fault and Punishment Under Sections 7 and 12 of the Charter

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

40 Pages Posted: 15 May 2010

See all articles by Jamie Cameron

Jamie Cameron

York University - Osgoode Hall Law School

Date Written: 2008

Abstract

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.

Keywords: Canadian Charter, S. 7, S. 12, fault, punishment, porportionality

JEL Classification: K30, K33

Suggested Citation

Cameron, Jamie, Fault and Punishment Under Sections 7 and 12 of the Charter (2008). THE CHARTER AND CRIMINAL JUSTICE, J. Cameron & J. Stribopoulos, eds., pp. 553-591, LexisNexis Canada Ltd., 2008. Available at SSRN: https://ssrn.com/abstract=1605168

Jamie Cameron (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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