Methods and Severity: The Two Tracks of Section 12
Forthcoming 2019, Supreme Court Law Review (2d)
21 Pages Posted: 17 Oct 2019 Last revised: 20 Oct 2019
Date Written: July 1, 2019
This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of punishment, like fines or imprisonment, the amount of punishment may be grossly disproportionate in light of factors like the gravity of the offence and the circumstances of the offender. To date, the distinction between the two tracks, and its implications for section 12 analysis, has gone unrecognized in the caselaw and scholarship alike. Carefully drawing this distinction, and identifying the particular inquiry appropriate to each track, not only sharpens our understanding of section 12, but will assist reviewing courts tasked with analyzing the constitutionality of a range of carceral practices, including mandatory penalties, life imprisonment without the prospect of parole, and solitary confinement.
Keywords: criminal law, mandatory minimum sentences, punishment, sentencing, cruel and unusual treatment or punishment
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