Section 12 – Cruel and unusual treatment or punishment

Provision

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

Similar provisions

Section 2(b) of the Canadian Bill of Rights is a similar provision. Section 7 of the Charter includes a related principle, prohibiting grossly disproportionate limitations of the right to life, liberty and security of the person (Canada (Attorney General) v. Bedford, 2013 SCC 72 at paragraphs 120-122). Note, however, that with respect to criminal sentencing, the gross disproportionality standard in section 7 is the same as it is under section 12. In other words, the section 7 principle against gross disproportionality would not give rise to a constitutional remedy against a criminal sentence if that sentence is in accordance with section 12 (R. v. Malmo-Levine, R. v. Caine, [2003] 3 S.C.R. 571 at paragraph 160; R. v. Safarzadeh-Markhali, 1 S.C.R. 180 at paragraph 72).

There are similar or related rights in the following international instruments binding on Canada: articles 7, 8, 10 of the International Covenant on Civil and Political Rights; articles 1, 2, 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; article 37 of the Convention on the Rights of the Child; article 15 of the Convention on the Rights of Persons with Disabilities; and article XXVI of the American Declaration of the Rights and Duties of Man. See also articles 7, 8 of the Rome Statute of the International Criminal Court.

See also the following international, regional and comparative law instruments that are not legally binding upon Canada but include similar provisions: articles 5, 6, 7 of the American Convention on Human Rights; the Inter-American Convention to Prevent and Punish Torture; articles 3, 4 of the European Convention on Human Rights; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; and the 8th Amendment of the Constitution of the United States of America.

Purpose

While a majority of the Supreme Court has never directly defined an underlying purpose for section 12, it has linked the right to the protection of human dignity (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 at paragraphs 2, 17, 51). Section 12 prohibits the imposition of certain treatments or punishments, through a contextual assessment of “the effect that the [treatment or] punishment may have on the person on whom it is imposed” balanced against the objective for that treatment or punishment. Section 12 prohibits treatment or punishment that is “grossly disproportionate” in the circumstances; in other words, one that would “outrage our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable” (R. v. Smith, [1987] 1 S.C.R. 1045 at 1072; R. v. Morrisey, [2000] 2 S.C.R. 90 at paragraph 26).

Analysis

For section 12 to be engaged, the impugned measure must be a “treatment or punishment” by a Canadian state actor. Section 12 is violated if the treatment or punishment is “cruel and unusual” (Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 608-609; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at paragraph 47; R. v. Boudreault, [2018] 3 S.C.R. 599 at paragraph 45).

Section 12 is typically at issue when an individual is subjected to a treatment or punishment. The Supreme Court has confirmed that section 12 does not protect corporations as as “the text ‘cruel and unusual’ denotes protection that ‘only human beings can enjoy’” (Quebec (Attorney General), supra at paragraph 1, quoting Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004).

1. Treatment or punishment by Canadian state actor

The definition of “punishment” for the purpose of section 12 is the same as the definition that applies in the context of ss. 11(h) and (i) of the Charter (Boudreault, supra at paragraph 38). A measure will therefore be a punishment if it “(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests”. (R. v. K.R.J., [2016] 1 S.C.R. 906, at paragraph 41, quoted in Boudreault, supra at paragraph 39). For more discussion of this test, see the Charterpedia entry for s. 11(i).

While the Supreme Court has not articulated a general definition of “treatment”, it is clear that this term extends the application of section 12 beyond measures that amount to punishment (R. v. Rodgers, [2006] 1 S.C.R. 554 at paragraph 63). The Supreme Court has noted the broad dictionary definition of treatment as “a process or manner of behaving towards or dealing with a person or thing...” (Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 at paragraph 29). The Supreme Court has left open the possibility that treatment may include measures imposed by the state outside of the penal or quasi-penal context. However, the mere legal prohibition of certain conduct does not constitute treatment under section 12. According to the Supreme Court, “there must be some more active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute ‘treatment’ under section 12 (Rodriguez v. British Columbia (Attorney General), supra, at 610).

The following measures have been considered treatments or punishments for the purpose of section 12:

Removal or deportation of a foreign national from Canada is not a punishment, but the Supreme Court has left open the possibility that removal may amount to “treatment” that engages section 12 (Chiarelli, supra at 735).

Similarly, extradition from Canada is not a punishment. The foreseeable treatment or punishment of the individual by the foreign state, post-extradition, is too causally remote from actions by Canadian officials to be considered under section 12. Rather, it should be considered under section 7 (United States v. Burns, [2001] 1 S.C.R 283 at paragraphs 50-57; Kindler v. Canada (Minister of Justice, [1991] 2 S.C.R. 779; Reference Re Ng Extradition (Can.), [1991] 2 S.C.R. 858).

The use of corrective force against children, “by parents in the family setting”, does not engage section 12, because it “is not treatment by the state” (Canadian Foundation, supra, at paragraph 48). The Supreme Court has left open the question of whether section 12 is engaged when teachers who are employed by the state use corrective force against children. Even if such corrective force does amount to “treatment” by the state, the “reasonable” corrective force that teachers are permitted to use under section 43 of the Criminal Code would not be considered “cruel and unusual” (Canadian Foundation, supra, at paragraphs 48-49).

The Supreme Court has left open the question of whether an administrative suspension of a licence is punishment (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at paragraph 34). An appellate court has answered this question in the negative (R. v. Miller (1998), 65 O.R. (2d) 746 (Ont C.A.)).

The Federal Court took an exceptionally expansive approach to the term “treatment” in Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651. The Court held that the withdrawal or limitation of health care funding for certain refugee claimants engaged section 12, because these individuals “are under immigration jurisdiction, and as such are effectively under the administrative control of the state”: for example, through immigration detention, conditions of release, and limitations on their ability to work or receive social assistance benefits (ibid. at paragraph 585). The Court limited its holding to “the unusual circumstances of this case” (ibid. at paragraph 610).

2. Cruel and unusual?

If a measure engages section 12, the next question is whether it is “cruel and unusual”.

This is a high threshold. To be cruel and unusual the treatment or punishment must be “grossly disproportionate”: in other words, “so excessive as to outrage standards of decency”, and be “abhorrent or intolerable to society”. The threshold is not met by treatment or punishment that is “merely excessive” or disproportionate (Smith, supra, at 1072; Morrisey, supra, at paragraph 26; Malmo-Levine, supra, at paragraph 159; R. v. Ferguson, [2008] 1 S.C.R. 96, at paragraph 14; Nur, supra, at paragraph 39; R. v. Lloyd, [2016] 1 S.C.R. 130 at paragraph 24; R. v. Boutilier, [2017] 2 S.C.R. 936, at paragraph 52; Boudreault, supra at paragraph 45).

Note that the phrase “cruel and unusual” is a “statement of a compendious norm”, one that is meant to be flexible, context-specific, and linked to reasonable or objective community standards. It can be expected that the protection of section 12 will evolve over time (Smith, supra).

(i) Extreme or irreversible treatments or punishments

Several extreme kinds of treatment or punishment are clearly cruel and unusual, and thus contrary to section 12:

The Supreme Court has never had to decide whether capital punishment imposed directly by the Canadian government would be contrary to section 12. However, the Court has indicated that because the death penalty is “irreversible” and “its implementation necessarily causes psychological and physical suffering”, it “engages the underlying values of the prohibition against cruel and unusual punishment” (Burns, supra at paragraph 78).

(ii) Criminal sentences of imprisonment - duration

It is no simple task to demonstrate that the duration of a criminal sentence unjustifiably limits section 12: “the test is not one which is quick to invalidate sentences crafted by legislators” (R. v. Goltz, [1991] 3 S.C.R. 485 at 501; R. v. Latimer, [2001] 1 S.C.R. 3, at paragraphs 75-77), and it is “very properly stringent and demanding” (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at 1417, quoted in Boudreault, supra at paragraph 45).

In evaluating whether a criminal sentence is a “cruel and unusual punishment” the core question is whether the sentence is “grossly disproportionate to the sentence that is appropriate, having regard to the nature of the offence and the circumstances of the offender” (Nur, supra at paragraph 39, citing Smith, supra at 1073; Lloyd, supra at paragraphs 22-23).

The test of gross disproportionality requires that a number of factors be carefully examined and weighed against each other:

A sentencing provision that establishes a high maximum penalty, but no mandatory minimum, will not itself limit section 12. While it is possible that an individual sentence imposed by a judge under a sentencing provision that allows for a high maximum sentence would be grossly disproportionate, this is a matter of error that can be corrected on appeal of the individual sentence. The validity of the underlying sentencing provision would not be in question (Smith, supra at paragraph 67; R. v. Malmo-Levine; R. v Caine, supra at paragraph 158).

On the other hand, mandatory minimum sentencing provisions can raise issues of gross disproportionality, because they have the potential to require departures from the general principle of proportionality in sentencing. However, such provisions are not inherently contrary to section 12 (Smith, supra; Nur, supra at paragraphs 44-46). Each mandatory minimum sentencing provision must be assessed on its own merits in light of the gross disproportionality standard. As the Supreme Court has observed, “the wider the range of conduct and circumstances caught by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate” (Lloyd, supra at paragraphs 3, 24, 35; R. v. Morrison, [2019] 2 S.C.R. 3 at paragraphs 146-148).

Where there is a challenge to a mandatory minimum sentencing provision, the section 12 analysis will involve two steps:

  1. “The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code”; then
  2. “The court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence”, either for the individual before the court, or for other individuals in reasonably foreseeable circumstances (Nur, supra at paragraphs 46, 77; Lloyd, supra at paragraphs 22-23). These questions were combined in Boudreault, a unique case with multiple individuals before the court and described in past decisions, where the court instead considered the circumstances of a “representative offender” (supra at paragraphs 49-55).

In identifying the reasonably foreseeable circumstances in which a mandatory minimum might be imposed, the key question is whether a circumstance “may reasonably be expected to arise”, based on both existing case law and common sense about the minimum conduct caught by the offence (Nur, supra at paragraph 56). The Supreme Court offers the following guidance:

The Crown’s ability to proceed summarily in relation to a hybrid offence does not “save” what is otherwise a grossly disproportionate mandatory minimum for indictable offences. If the Crown is procedurally allowed to elect that an offence should be prosecuted by indictment, and thus be subject to a problematic mandatory minimum, that is sufficient for the purpose of the section 12 analysis. Because of the high standard for judicial review of prosecutorial discretion (“abuse of process”, rather than reasonableness), it would be inappropriate to have the constitutionality of a statutory provision rest on the expectation that the Crown will always act properly (Nur, supra at paragraphs 85-97; Morrison, supra at paragraphs 149-154).

The possibility of parole should not be considered in assessing the impact of a mandatory minimum sentence on offenders. Parole is a statutory privilege rather than a right; the parole board’s role is to ensure the offender is safely released into the community, not to ensure the proportionality of the sentence (Nur, supra at paragraph 98).

The Supreme Court has held that the following mandatory minimum sentences were contrary to section 12, because of their application in reasonably foreseeable circumstances:

The Supreme Court has held that the following mandatory minimum sentences were not contrary to section 12:

(iii) Detention: indefinite detention and conditions of detention

Detaining an individual is not an inherently “cruel and unusual” treatment or punishment: “It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment” (Charkaoui, supra at paragraph 96).

Detention that is for an extended period and of an uncertain duration (i.e., no defined end date) is not necessarily cruel and unusual, but it may be if the individual is denied a meaningful opportunity to challenge the continued detention. In the context of immigration detention, section 12 requires that an extended period of detention be “accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case”, which affords the individual regular and “meaningful opportunities to challenge their continued detention” (Charkaoui, supra, at paragraphs 107, 110; see e.g. Brown v. Canada (Public Safety), 2018 ONCA 14 at paras. 40-48, leave to appeal to SCC dismissed, 2018 CanLII 102731; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, leave to appeal to SCC dismissed, 2021 CanLII 18039).

Similarly, in the criminal context, the Criminal Code’s “dangerous offender” regime does not unjustifiably limit section 12 of the Charter, because the sentencing judge retains discretion under the statutory provisions to apply the relevant principles and objectives of sentencing, in order to impose a fit sentence in the circumstances of the particular offender (Boutilier, supra at paragraphs 48-71). Where the sentencing judge decides to impose an indeterminate sentence on a dangerous offender, the regime allows for periodic review of the individual’s circumstances by the parole board (Lyons, supra at 341). Where, however, the review is not properly conducted, the punishment may become "cruel and unusual" (Steele v. Mountain Institution, [1990] 2 S.C.R. 1385).

One appellate court has concluded that placements in administrative segregation for a continuous period longer than 15 calendar days infringe section 12 of the Charter (Canadian Civil Liberties Association v. Canada, supra at paragraphs 68-119; Brazeau v. Canada (Attorney General), 2020 ONCA 184; Francis v. Ontario, 2021 ONCA 197). In the context of a class action, the same court has upheld the finding that for inmates who are seriously mentally ill, a placement in administrative segregation for any duration is contrary to section 12 (Francis, supra at paragraphs 30-49). Other cases have held that segregation of an inmate is not necessarily contrary to section 12, but that it may be cruel and unusual treatment or punishment in certain instances, if it is so excessive as to outrage standards of decency (Olson, supra, aff'd without reference to this point, S.C.C.; Marriott, supra at paragraphs 34-46; British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62 at paragraphs 525-534, partly overturned but not on this issue in British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, appeal to SCC discontinued). In one individual case, a prolonged period of administrative segregation in pre-trial detention was found to be a violation of section 12, in light of the particular conditions and the impacts on the individual (R. v. Capay, 2019 ONSC 535 at paragraphs 399-415).

It is not necessarily cruel and unusual to detain an accused person awaiting trial in conditions that are similar to those for individuals who have been convicted and are serving a sentence of imprisonment. So long as the conditions do not "outrage standards of decency", in light of all the circumstances, section 12 is not limited by this sort of treatment. (Sanchez v. Superintendent of the Metropolitan Toronto West Detention Centre (1996), 34 C.R.R. (2d) 368 (Ont. C.A.)).

(iv) Criminal fines, forfeitures, and prohibition orders

In Boudreault, the Supreme Court considered the mandatory imposition of the victim surcharge, a monetary penalty of an amount set by law, which was imposed on all offenders on a cumulative basis for each and every conviction or discharge. After a detailed consideration of the practical impacts of the surcharge on the most marginalized offenders, the Court found a section 12 violation: the “actual imposition, operation, and effects of the mandatory surcharge, when combined, create a grossly disproportionate punishment” for certain offenders (supra at paragraph 61). The court’s analysis was most concerned with the impacts of the surcharge on offenders who “live in serious poverty … have precarious housing situations … [and] struggle with addiction” (supra at paragraphs 54, 86).

There are no other examples of a proprietary sanction, such as a fine or a forfeiture, being considered a violation of section 12. Given the high standard to find a violation of section 12, appellate rulings prior to Boudreault have suggested that these circumstances are likely to be exceptional (see e.g. Pham, supra; Turner v. Manitoba, 2001 MBCA 207 at para. 40; R. v. Lambe, 2000 NFCA 23 at paras. 60-72; Desjardins, supra; R. v. Zachary, [1996] A.Q. No. 2970 (Que. C.A.); R. v. MacFarlane, [1997] P.E.I.J. No. 116 (P.E.I. C.A.)).

For example, appellate courts have consistently rejected section 12 challenges to the relatively high mandatory fines that can be imposed under the Excise Act. (see e.g., Pham, supra; Desjardins, supra; Zachary, supra; MacFarlane, supra). In Boudreault, the Supreme Court distinguished the Excise Act fines from the victim surcharge, explaining that the relatively high mandatory fines in Pham showed a degree of proportionality because “the amount of the fine was tightly linked” to the economic impacts of the offence (supra at paragraph 93).

Note that certain Criminal Code provisions can attenuate the impact of minimum fines. Section 734.3 of the Criminal Code permits an offender to apply for an extension of time to pay a fine beyond the period imposed by the trial judge. Moreover, section 734.7 of the Code provides certain safeguards where imprisonment is to be applied in default of fine payment (e.g., issuing a warrant for committal only where the offender has refused to pay the fine without reasonable excuse). These provisions were a factor in past decisions by provincial appellate courts that upheld minimum fines (see e.g. Pham, supra at paragraph 17). In the specific context of the victim surcharge, the Supreme Court did not consider them to be an adequate mitigating measure, given the lived reality of the most marginalized offenders impacted by that penalty (Boudreault, supra at paragraphs 69-79).

Even though the mandatory forfeiture of firearms involved in offences is a treatment or punishment, it is not contrary to section 12. This measure does not have particularly onerous consequences on the offender, and it applies to offences with some gravity. It advances sentencing principles of general and specific deterrence, for the legitimate purpose of addressing gun crime that involves illegally held firearms (Montague, supra, at paragraphs 39-62).

Provincial appellate courts have found other mandatory forfeiture provisions to be consistent with section 12 for similar reasons, in the context of provincial wildlife legislation (Turner, supra) and provincial vehicles regulation (Lambe, supra).

A mandatory weapons prohibition under paragraph 109(1)(c) of the Criminal Code does not limit section 12. It relates to recognized sentencing goals of protecting the public, and pursues a legitimate state interest in reducing the misuse of weapons. It does not have a grossly disproportionate effect having regard to any reasonable hypothetical, given the ameliorative provision found in section 113 of the Criminal Code which permits the court to lift the order for sustenance or employment reasons (Wiles, supra, at paragraphs 3, 9-10). In relation to a mandatory weapons prohibition under paragraph 109(1)(b), see the brief reasons upholding that provision in Dufour c. R., 2017 QCCA 536 at paragraphs 5-6.

(v) Immigration removals (deportation) and extradition

As noted above, removal or deportation of a foreign national from Canada is not a punishment, but the Supreme Court has left open the possibility that removal may amount to “treatment” that engages section 12 (Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at 735).

But even if it engages section 12, removal or deportation does not, in and of itself, constitute “cruel and unusual” treatment contrary to section 12 (Chiarelli, supra at 735-736; Solis v. Canada (Minister of Citizenship and Immigration) (2000), 186 D.L.R. (4th) 512 (Fed. C.A.) at paragraph 11, application for leave to appeal dismissed, [2000] S.C.C.A. No. 249; Canepa v. Canada (Minister of Employment and Immigration) (1992), 93 DLR (4th) 589 (Fed. C.A.); Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, application for leave to appeal to SCC dismissed, 2020 CanLII 25169).

For example, the Supreme Court has held that it is not cruel and unusual to deport “a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more” (Chiarelli, supra at 736).

Where an individual is challenging their removal or extradition from Canada on the basis of risks faced in the foreign state, section 12 is generally not the most relevant Charter right. It is more appropriate to consider the Charter implications under section 7 of the Charter, which is more flexible and context-dependent. The values represented by section 12 play an important role in defining the section 7 principles of fundamental justice that apply to removals and extraditions (see, e.g., Burns, supra, at paragraph 57, “the values underlying various sections of the Charter, including s. 12, form part of the balancing process engaged in under s. 7”; Suresh, supra, at paragraphs 51-58; United States v. Hillis, 2021 ONCA 447 at paragraphs 72-74).