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August 1999 Northern Lights By Steven Skurka; Leslie Pringle; Rachel E. Young
Leslie Pringle is a principal in the firm of Skurka & Pringle. A former federal prosecutor, she has practiced criminal defense law exclusively since 1991. With an emphasis on search and seizure and wire tap issues, she has had many cases involving constitutional issues including a successful challenge to the duress provisions of the Criminal Code. Rachel E. Young is an associate at Skurka and Pringle. Cruel and Unusual Punishment in Canada At the core of a civilized criminal justice system must be the prevention of inhumane treatment of citizens, no matter how serious their crimes. The United States, Canada, and Britain all have constitutional guarantees against cruel and unusual treatment or punishment. This principle emerged out of the horror of state-sponsored torture and other such brutality, and dates back to at least 1688.1 The Canadian counterpart to the Eighth Amendment in the U.S. Constitution is s. 12 of the Canadian Charter of Rights and Freedoms.2 The Charter became part of the Canadian Constitution in 1982. Section 12 says: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. The interpretation of the Canadian and American provisions have been quite different.3 Canadian sentences tend to be lighter than American sentences. Canada abolished the death penalty in 1977.4 The Canadian threshold for what is “cruel and unusual” may well be lower than the American threshold. The two approaches have clashed, for example, in high-profile extradition cases where Americans flee to Canada to avoid the death penalty. An American attorney might be surprised to learn that a Canadian 7-year minimum sentence for importing drugs was struck down as cruel and unusual punishment, when the minimum sentence in some states for trafficking drugs is 20 years. The law providing for the 7-year minimum sentence was the first to be struck down by the Supreme Court of Canada as cruel and unusual punishment. Edward Smith was caught importing 7 1/2 ounces of 85-90 percent pure cocaine into Canada from Bolivia, and the minimum sentence of seven years applied. Smith pled guilty and was given a sentence of eight years. The minimum sentence was challenged as cruel and unusual punishment under the Charter, particularly since there was no allowance for the quantity of drug imported. The Supreme Court of Canada recognized that drugs are a scourge of modern society. Chief Justice Antonio Lamer had this to say about drug dealers: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.5 However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let’s postulate, his or her first “joint of grass,” would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge.6 To be unconstitutional, a sentence must be more than merely disproportionate or excessive. A “cruel and unusual” punishment is one which is so excessive as to outrage standards of decency. Even if the sentence is not outrageous for the offender before the court, the court should consider its effect in a more minor, “reasonable hypothetical” situation (as with the scenario involving a young person with a joint). If the sentence would be cruel and unusual for a sympathetic low-level offender, it is unconstitutional.7 The different considerations that come into play in looking at a challenged sentence include: 1. Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? 2. Is it unnecessary because there are adequate alternatives? 3. Is it unacceptable to a large segment of the population? 4. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? 5. Is it arbitrarily imposed? 6. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? 7. Is it in accord with public standards of decency or propriety? 8. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? 9. Is it unusually severe and hence degrading to human dignity and worth?8 As recently as 1955, the Canadian Criminal Code included the punishment of whipping: the sentence was to specify a number of strokes to be given to the offender using a cat-o’-nine tails on one, two, or three occasions. Men only were to suffer this treatment. Whipping sentences were handed out for such crimes as “assault on sovereign”, “gross indecency” (usually involving homosexual activity, often consensual activity, and occasionally encompassing such acts as consensual heterosexual cunnilingus), rape, robbery, and burglary. The concession to humane treatment included in this provision was that the sentence was to be executed in the presence of a prison doctor. It is shocking to realize how recently these sentences were considered to be acceptable. That shows how much mainstream values have changed in the last 30 years. Since the enshrinement of the Charter in the Canadian Constitution in 1982, s. 12 provides some protection against a swing back to the vengeful and repressive public attitudes of earlier times. Canada’s Constitutional Position on the Death Penalty Is Unclear What kinds of sentences are cruel and unusual? The mind tends to turn to the most severe punishment of all, the death penalty. Capital punishment was abolished in Canada five years before the Charter became part of the Canadian Constitution, so the question of whether it would be struck down under s. 12 has never been resolved. Interestingly, around the same time that the death penalty was abolished, the Supreme Court said that the death penalty was not cruel and unusual punishment.9 However, this ruling was made under the Canadian Bill of Rights, a quasi-constitutional statute without the power to override the legislature.10 It is not clear what would have happened under the Charter. The closest the Supreme Court has come to considering this question was the case of Kindler v. Canada (Minister of Justice).11 Joseph Kindler was a convicted murder and kidnapper from Pennsylvania who had been sentenced to death. He escaped from prison and fled to Canada. He was arrested here and committed for surrender for extradition. Although article 6 of the Extradition Treaty Between Canada and the United States, 1976, provides that the country from which extradition of a fugitive has been requested may seek assurances from the demanding state that the death penalty will not be imposed, and despite the fact that we do not have the death penalty, our Minister of Justice did not ask for such assurances in Kindler’s case. In reviewing the justice minister’s decision in Kindler, Justice Peter Cory wrote a moving dissent, expressing the view that the death penalty constituted cruel and unusual punishment under the Charter. Although various kinds of corporal punishment in Canada were permitted until fairly recently, social mores change over time and ours is now a “more sensitive” and “maturing” society.12 Justice Cory pointed out that the majority in the Smith case, mentioned above, had stated in obiter dicta that state-imposed lobotomies and castrations would be unconstitutional. He put it this way: If corporal punishment, lobotomy and castration are no longer acceptable and contravene s. 12 then the death penalty cannot be considered to be anything other than cruel and unusual punishment. It is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration. As the ultimate desecration of human dignity, the imposition of the death penalty in Canada is a clear violation of the protection afforded by s. 12 of the Charter. Capital punishment is per se cruel and unusual.13 The court in Kindler wrote a fractured judgment and did not ultimately decide the case on the basis of the constitutionality of the death penalty. Instead, Madam Justice Beverly McLachlin held that Canada should not require a requesting state’s criminal justice system to be identical to its own in order to extradite. She found that the United States had a fair system with procedural protections for accused persons. Since s. 12 of the Charter did not apply to extraterritorial matters, Kindler’s execution in the United States was beyond its scope. Another section of the Charter, s. 7, guaranteeing the removal of rights only according to “principles of fundamental justice” did apply, but s. 7 was not breached. The fact that Kindler faced death upon extradition did not “sufficiently shock” the Canadian public that the alternative, that he not face justice at all, be realized. Justice McLachlin emphasized the need for Canada to honour its extradition obligations, particularly with the United States. These two countries have the longest undefended border in the world, and fugitives should not be encouraged to flee to Canada to escape justice. According to the majority, the justice minister’s order to extradite without assurances that the death penalty would not be imposed or carried out did not violate the Charter.14 Justice Cory, the dissenting judge, found the argument that extradition was not unconstitutional because the execution was done in the United States and not in Canada to be “an indefensible abdication of moral responsibility.” He added, in the poetic and philosophical manner for which he has become known, “The ceremonial washing of his hands by Pontius Pilate did not relieve him of responsibility for the death sentence imposed by others and has found little favour over the succeeding centuries.”15 The bottom line is that, in this multicultural country which is home to many religions, views are polarized on this issue. As Justice McLachlin noted in Kindler, “There is no clear consensus in this country that capital punishment is morally abhorrent and absolutety unacceptable.”16 Justice Cory, who wrote such an impassioned dissent, has recently announced his retirement from the Supreme Court of Canada. This is worrisome because there is no clear judicial pronouncement that amounts to the law under the Charter about the constitutionality of the death penalty here. It would still be possible for parliamentary proponents of a “tough on crime” mentality to play to the public’s fears and pass a law reinstating the death penalty. If that should happen, we can only hope that the Supreme Court will stand firm and call the law cruel and unusual. Minimum Sentences Minimum sentences are frequently attacked as being cruel and unusual punishment in Canada. Minimum punishments are despised and dreaded by defence counsel: they are a blunt instrument which leaves the trial judge no choice but to hammer the client on sentencing. However, our courts have held that mandatory minimum punishments do not amount per se to cruel and unusual punishment.17 Mandatory minimum sentences are not as prevalent in Canada as they are in the United States, but they do arise in a wide variety of contexts in this country. The longest mandatory minimum sentence is a life sentence for murder.18 In 1995, Parliament introduced a mandatory minimum sentence of four years for certain serious offences committed with a firearm. Minimum punishments exist for drinking and driving offences, including a minimum fine for a first offence, and mandatory jail sentences for subsequent offences. A wide variety of regulatory offences also require that a minimum fine be imposed upon conviction. Attacks on mandatory minimum sentences as being cruel and unusual punishment have, for the most part, been unsuccessful.19 The most notable exception is the Smith case mentioned earlier, where the Supreme Court of Canada found that it would be cruel and unusual punishment to sentence a young person who imported a joint of grass after a vacation in the United States to seven years imprisonment. Since the Narcotic Control Act permitted this kind of draconian sentence for the “one joint” case, the 7-year minimum sentence for importing a narcotic was declared unconstitutional. However, Smith’s situation was far from the “one joint” situation. Having imported 7.5 ounces of very pure cocaine, Smith was only able to convince the court to reduce his sentence to six years, even in the absence of the mandatory minimum sentence.20 Some success in attacking mandatory minimum punishments as “cruel and unusual” was seen in the early 1990s in Canada, in the area of firearms prohibitions. At that time, Parliament had expressed its abhorrence of crimes of violence and firearms by passing a provision of the Criminal Code which required the sentencing court to prohibit an accused from possessing firearms for 10 years in any case where the offence involved a threat of violence. Given the deadly combination of guns and violence, the mandatory prohibition seemed amply justified in most cases. However, in rare instances, the prohibition resulted in a grossly disproportionate sentence when for example, the accused was a native trapper who depended on hunting for food and income. In cases such as this, the courts persisted in creating a constitutional exemption which suspended the prohibition for the accused in question.21 In 1994, Parliament capitulated to the courts by enacting an escape clause from the mandatory prohibition in circumstances where “it would not be appropriate.”22 The example of the native hunter caught by the mandatory firearms prohibition demonstrates that it is the rare and unusual case that will be the Achilles’ heel of all mandatory minimum sentences. The rigidity and inflexibility of the legislation which, by its nature must be impervious to the plight of an individual, is what creates the potential for cruel and unusual punishment in the exceptional case. At this moment in Canada, Canadians are watching the dynamics of just such a situation in the context of a murder charge in the case of Robert Latimer.23 Robert Latimer has been described as a typical, salt-of-the-earth prairie farmer, who was born and raised in Saskatchewan.24 He is a devoted family man, a loving, caring and nurturing person, and he was said to be a wonderful father to his daughter Tracy, who was born clinically dead, and was resuscitated to live as a tragically disfigured and disabled victim of cerebral palsy. At 12 years old, Tracy had the development of a two- to three-month old baby, and lived in constant pain. Learning that Tracy was to undergo yet another operation, her father killed her by carbon monoxide poisoning to end her suffering. It was clear that he acted only out of love. However, he was found guilty of second-degree murder which carries with it a mandatory life sentence, with no eligibility for parole for at least ten years. Contrary to the mandatory provisions of the Criminal Code, the jury recommended that Latimer serve only one year in jail. Again, contrary to the mandatory provisions of the Criminal Code, the trial judge actually sentenced him to only one year in prison, and one year of probation. The trial judge found that, in the circumstances of this case, a life sentence with no parole for 10 years would be cruel and unusual punishment. The case caused an uproar. Many people supported Latimer, and were moved to write letters to the judge, to the Minister of Justice, and to Latimer himself in support of his predicament. However, others felt that a strong message must be sent to deter deliberate acts of “mercy killing,” especially as a protection for handicapped members of society. In light of the conflict in public opinion, it is not easy to discern what the “public standard” of punishment is in this case. However, it is sure to receive continuing media attention since one of Canada’s leading (and most outspoken) criminal law advocates, Edward Greenspan, is participating in the case for Latimer. Watch for it in Canadian criminal law commentary — the analysis on cruel and unusual punishment will be an interesting reflection on the ethical debate in this area. Cruel and unusual punishment has also received some attention from lawyers and judges in relation to the recent 4-year mandatory minimum sentences for certain firearms offences. Media attention has been conspicuously absent, as these mandatory minimum sentences relate only to violent offences with little to arouse the sympathy of the general public. Lawyers’ attempts to argue gross disproportionality for a 4-year mandatory sentence in the penitentiary for young persons accused of robbery with a BB gun (which may not even be loaded), have not met with success.25 Although judges may be sympathetic to the hardship which will be endured by a young first offender in “the pen,” they have been unable to conclude that such a sentence was so “grossly” disproportionate that it amounted to cruel and unusual punishment. This is no doubt reflective of the fact that there is a public standard in Canada in relation to firearm-related crime: We abhor it. In the circumstances, it is perhaps not difficult to understand why leave to appeal the minimum 4-year quantum of this potentially unfair sentence to the Supreme Court has been refused. However, the Court has agreed to hear argument on a related issue — whether pre-trial custody can be taken into account and deducted from the “minimum.”26 Until the Ontario Court of Appeal spoke out recently, courts in Canada had been construing the minimum sentence as an absolute.27 In some cases, this meant that even if an offender had been in pre-trial custody for a year because he could not obtain bail, that time could not be taken into account on sentencing. (Sadly, it is true that a wait of 12 months for a jury trial in Ontario is not a far-fetched scenario, even when the accused is in custody.) In light of the reality of pre-trial detention, the Ontario court interpreted the legislation in such a way as to permit an adjustment of the sentence to reflect the pre-trial custody. Thus, a young robber with an unloaded BB gun might receive a 3-year sentence (instead of four), taking into account his pre-trial custody of six months (Canadian courts often give double credit for pre-trial custody). In the absence of this credit, the Ontario Court of Appeal held that a minimum sentence could be cruel and unusual in some cases.28 The Supreme Court of Canada will rule on this issue later this year. Less dramatic examples of cruel and unusual punishment can be found in a number of lower court decisions finding that minimum fines in tax related cases are “grossly disproportionate” and contrary to section 12 of the Charter.29 Although the issue in these cases may appear to focus on the pocket-book of the accused, in reality the cruelty of the punishment arises from the fact that an impecunious accused may go to jail simply because he or she is unable to pay a fine. While jail itself is not cruel and unusual punishment, the concept of debtor's prison is arguably out of all proportion for failure to file a tax return. The topic of minimum sentences cannot be left without a comment on the quantum of minimum sentences, and the differing views tolerated by our two countries. Criminal defence lawyers on this side of the border listen with amazement and horror to the possibility of a 20-year minimum sentence with no possibility of parole for trafficking in 10 ounces of cocaine. In Jamieson,30 Justice Morris Fish of the Quebec Court of Appeal found such a sentence to be shocking and unacceptable, offending what he found would be Canadians’ sense of what is fair, right and just. At issue was whether Jamieson should be extradited to the United States to face charges of drug trafficking. He had fled from Michigan after he was released on bail. The case caused our courts a great deal of concern, in part because Justice Fish was probably right that most Canadians would find the quantum of the sentence so shocking as to be breath-taking. However, as Justice Baudoin of the Quebec Court of Appeal found, “The issue is not to extol the virtues of our own system (much more liberal, it goes without saying), nor to put on trial the American adversary system (very repressive), but only to decide whether the law and the justice system which will be applied to the person who will be extradited are unacceptable to our conscience.”31 In the final analysis, the Supreme Court agreed with Justice Baudoin that extradition in this case was in accordance with our treaty obligations.32 No doubt the Court was also mindful of the fear expressed in Kindler that the floodgates would open if we were to announce we were a safe haven from repressive sentencing. Jamieson was ordered back to the United States. Ever-Vigilant The question of which laws passed by our democratically elected legislature our courts should call “cruel and unusual” is clearly a heated political one. Standards of acceptable punishment change from decade to decade, and even on a given day not everyone can agree on where to draw the line. The whole idea of a constitution, of course, is that the impassioned majority not be allowed to trample the unpopular individual. Canada’s view on the future of the death penalty is uncertain, and the value laden analysis of s. 12 inevitably holds the courts hostage, at least to some degree, to public opinion. Canada is second only to South Africa in the youth and plasticity of its written constitution. The one assurance we have is that Canadian defence lawyers will be ever-vigilant in fighting punishments that they perceive to be cruel and unusual. Notes 1. Section 10 of the English Bill of Rights, 1 Wm. & M. sess. 2, c. 2 2. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 3. This article does not attempt a comparative legal analysis. For a brief discussion of the differences between the Canadian and American approach to this constitutional rights, see Smith v. The Queen (1987), 34 C.C.C. (3d) 97 at 140-142 (S.C.C.) per Lamer J. 4. Criminal law is under federal jurisdiction in Canada. 5. Smith, ibid. at 124 per Lamer J. 6. For the sake of completeness, it should be noted that it is not enough to strike down a law that there is a breach of a Charter right. The state has the opportunity to justify a rights violation once is has been proved. Charter violations of legal rights can be justified under a balancing provision of the Charter, s. 1, which says that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” However, considering the language on its face, it is hard to imagine how cruel and unusual punishment can ever be justifiable in a free and democratic society. 7. Smith, supra at 135 per Lamer J. 8. R. v. Miller (1976), 31 C.C.C. (2d) 177 (S.C.C.) 9. R.S.C. 1970, App. III, s. 2(b) 10. (1991), 67 C.C.C. (3d) 1 (S.C.C.); released with the companion case of Reference re Ng Extradition (Canada) (1991), 67 C.C.C. (3d) 61 (S.C.C.), another case where a murderer fled to Canada to escape the death penalty. 11. Kindler, supra at 37 per Cory J. in dissent 12. Kindler, ibid. at 37 per Cory J. in dissent 13. Kindler, ibid at 54-61 per McLachlin J. for the majority 14. Kindler, ibid. at 42 per Cory J. in dissent 15. Kindler, ibid. at 57 per McLachlin J. for the plurality 16. R. v. McDonald (1998), 127 C.C.C. (3d) 57 at 84 (Ont. C.A.), citing Smith, supra 17. There is a bill currently before the Senate, Bill C-251, which would mandate that the mandatory portion of each life sentence imposed on someone guilty of more than one murder be served consecutively. 18. In Steele v. Mountain Institution (1990), 60 C.C.C. (3d) 1, the Supreme Court of Canada noted that it will only be on rare and unique occasions that the court will find a sentence so grossly disproportionate as to amount to cruel and unusual punishment. 19. Smith’s sentencing case is indexed as R. v. Saulnier et al. [1987] B.C.J. No 2497 (C.A.) 20. R. v. Nester (1992), 70 C.C.C. (3d) 477 (N.W.T.C.A.); R. v. Iyerak, [1991] N.W.T.R. 40; R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.); R. v. McGillivary (1991), 62 C.C.C. (3d) 407 (Sask C.A.) 21. Criminal Code of Canada, R.S.C. 1985 c. C-46, as amended, s. 113. 22. R. v. Latimer, [1999] S.C.C.A. No. 40 23. This description comes from the dissenting opinion of Bayda C.J.S. of the Saskatchewan Court of Appeal in R. v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.) 24. McDonald, supra 25. R. v. Wust, [1998] S.C.C.A. No. 321 26. See R. v. McDonald, supra 27. McDonald, supra at 64 28. R. v. Samaha, [1998] N.S.J. No 358; R. v. Piscione, [1997] O.J. No. 4416; R. v.Pickering, [1997] M.J. No. 114; R. v. MacFarlane, [1997] P.E.I.J. No. 25 29. R. v. Jamieson (1994), 99 C.C.C. (3d) 265 (Que C.A.) 30. Jamieson, ibid. at 270 per Baudoin J.A., dissenting 31. R. v. Jamieson (1996), 104 C.C.C. (3d) 575 (S.C.C.) 32. See Kindler, supra, by LaForest J. at 14 and by McLachlin J. at 56 and 58 Reader participation is welcome. Please send your comments, questions, suggestions to: Northern Lights Steven Skurka Leslie PringleRachel Young Suite 1705 439 University Avenue Toronto Ontario Canada M5G 1Y8 Phone (416) 596-8192 Fax (416) 596-8449 Web www.crimlaw.org | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
