JUST DESERTS OR CRUEL AND
UNUSUAL TREATMENT OR
PUNISHMENT? WHERE DO WE
LOOK FOR GUIDANCE?
Walter S. Tarnopolsky*
I.
INTRODUCTION
On October 5, 1976, in the case of Regina v. Miller and Cockriell,'
the Supreme Court of Canada unanimously decided that the death
penalty provisions which had been in the Criminal Code' did not
constitute cruel and unusual punishment contrary to section 2(b) of the
Canadian Bill of Rights. 3 The decision must have disappointed the
abolitionists at least, but it should not have surprised anyone. For one
thing, between the time that Miller and Cockriell had been convicted at
trial, and the date of the decision of the Supreme Court, Parliament had
abolished the death penalty. 4 In the second place, at no time did a
majority of the United States Supreme Court hold that the death penalty
per se constituted cruel and unusual punishment contrary to the American Bill of Rights.
What is both surprising and disappointing about the decision of the
Supreme Court of Canada is that, apart from the Chief Justice, no other
member of the Court indicated that he had arrived at his conclusion by
careful analysis and cogent reasoning rather than by brief summation or
imperious assertion. In constitutional adjudication and in the elaboration
of a Bill of Rights, the whole country, and especially the legal profession
from most junior lawyer to Court of Appeal judge, must expect guidance
from the Supreme Court. If guidance comes not from the highest court
in the land, where else can we look? Surely Parliament cannot be
expected to elaborate and define what it has itself enacted in the
Canadian Bill of Rights. It has directed the courts to do so in section 2:
Every law of Canada shall . .. be so construed and applied as not to abrogate,
abridge or infringe or to authorise the abrogation, abridgement or infringement
of any of the rights or freedoms herein recognised and declared, and in
particular no law of Canada shall be construed or applied ...
so as to
(b) impose or authorise the imposition of cruel and unusual treatment or
punishment.
*Professor of Law, Osgoode Hall Law School. York University.
'[1976] 5 W.W.R. 711, 70 D.L.R. (3d) 324 (S.C.C.).
2 R.S.C. 1970, c. C-34, ss. 214 and 218, as amended by S.C. 1973-74 c.38.ss.2 and 3.
3 R.S.C. 1970, App. III.
' Criminal Law Amendment Act (2), 1976, S.C. 1974-75-76 c. 105.
Ottawa Law Review
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Surely if a court is directed to "construe" the law, Parliament must
have had in mind an assessment and analysis greater than a mere
reference to its own actions at the time of the enactment of the Canadian
Bill of Rights. The overwhelmingly, although obviously not totally,
favourable response to the 1970 decision in Regina v. Drybones 5 should
have emboldened the Court to continue on the same Olympian plane.
Instead, Drybones seems to have frightened the majority of the
members of the Court into treading with excessive caution.
It should be emphasized that it is not so much the results of the
Supreme Court decisions on the Canadian Bill of Rights since Drybones
that are being questioned, as the analysis and reasoning, or the lack
thereof, by which the majorities have arrived at those results.
Before dealing with the Miller and Cockriell case, it might be useful
to survey the decisions on section 2(b) which preceded it. The most
recent of these, Regina v. Shand6 and McCann v. The Queen, 7 which
were contemporaneous with the Miller and Cockriella case, will be dealt
with in some detail, in part because their results are interesting and in
part because those judgments, regardless of whether one agrees with
them, involve the kind of analysis and reasoning which one would
expect to find in judgments of the highest court in the land.
A.
The Earlier Cases
The Supreme Court of Canada dealt with the "cruel and unusual
treatment or punishment" clause in section 2 as early as 1968, in the
case of Magda v. The Queen.9 The petitioner alleged, inter alia, that in
the course of his internment during World War II he had been subjected
to treatment contrary to section 2(b) of the Bill of Rights. The Court
rejected the claim on several grounds, including two which referred to
the Canadian Bill of Rights. It was held that the Bill of Rights was not
applicable as it was not in force during the period referred to and,
secondly, that "the pre-existing rights which it recognizes do not include
the right to bring an action in tort against the Crown except as
specifically provided by statute". 10
A year later the British Columbia Supreme Court, in Ex parte
Kleinys,11 held that the detention, at the discretion of the LieutenantGovernor, of an accused who was subsequently found to be insane did
5 [1970] S.C.R. 282, 9 D.L.R. (3d) 473 (1969).
6 13 O.R. (2d) 65, 70 D.L.R. (3d) 395 (C.A. 1976), rev'g II O.R. (2d) 28, 64 D.L.R.
(3d) 626 (Cty. Ct. 1976), appeal denied, (S.C.C. Dec. 6, 1976).
7 [1976] 1 F.C. 570, 68 D.L.R. (3d) 661 (1975).
"The Shand and McCann cases were decided only months after the British Columbia
Court of Appeal rendered judgment in Miller and Cockriell, [1975] 6 W.W.R. I, 63 D.L.R.
(3d) 193.
[1964] S.C.R. 72, 42 D.L.R. (2d) 330 (1963).
o°ld. at 78, 42 D.L.R. (2d) at 335.
1 51 W.W.R. 597, 49 D.L.R. (2d) 225 (B.C.S.C. 1965).
Cruel and Unusual Treatment or Punishment
1978]
not contravene section 2(b) of the Canadian Bill of Rights. The Manitoba
Court of Appeal, in Regina v. Dick, Penner and Finnigan,12 held that a
sentence of whipping for rape did not contravene the "cruel and unusual
treatment or punishment" clause. The majority found that although
corporal punishment may be "cruel" in the view of some persons, it
was not an "unusual" punishment and in fact had been used as a
disciplinary measure even outside of prison.' 3 In the 1970s, an Ontario
provincial court in the case of Regina v. Buckler, 4 and an Ontario
county court in the case of Regina v. Roestad,'S held that sections 660
and 661 (now sections 688 and 689) of the Criminal Code, which provide
for the preventive detention of indeterminate length for, in the former
case "habitual criminals" and in the latter case "dangerous sexual
offenders", did not constitute cruel and unusual treatment or punishment in violation of section 2(b) of the Canadian Bill of Rights. Two
Ontario High Court decisions, Dowhopoluk v. Martin'6 in 1971 and Ex
parte Hilson17 in 1973, held, respectively, that denial of citizenship did
not violate section 2(b) nor did forfeiture of statutory remission upon
revocation of parole. In 1972 the British Columbia Court of Appeal, in
Regina v. Natrall,18 held that the imposition of a sentence for payment
of a fine, with imprisonment in default of such payment, did not
constitute cruel or unusual treatment or punishment. In the same year,
the Ontario Court of Appeal, in Levitz v. Ryan, 9 held that the use of
writs of assistance in a search for drugs did not constitute a contravention of section 2(b).
Two cases dealt briefly with allegations of cruel and unusual
"treatment" contrary to section 2(b) of the Bill of Rights, and the claims
were rejected in both. The earlier of these was a 1964 decision of the
Exchequer Court20 which held that the imposition of excise tax on
diamonds was not a contravention of section 2(b). In the second case, 2 '
Hugesson J. (as he then was) of the Quebec Court of Queen's Bench
held that a surgical operation to be performed pursuant to a search
warrant authorizing the police to search the body of the accused for
bullets when he had been wounded by police gunfire, did not constitute
cruel and unusual treatment. The judge said that such an operation,
carried out by competent and qualified persons upon a patient who is
12
[1965] 1 C.C.C. 171 (Man. C.A. 1964).
Some seven years later, the applicable section of the CRIMINAL CODE was amended
to delete punishment by whipping. See S.C. 1972 c. 13, s. 59.
14 [1970] 2 O.R. 614, [1970] 2 C.C.C. 4 (Prov. Ct.).
'3
15[1972] 1 O.R. 814, 5 C.C.C. (2d) 564 (Cty. Ct. 1971).
16 [1972] 1 O.R. 311, 23 D.L.R. (3d) 42 (H.C. 1971).
17 12 C.C.C. (2d) 343 (Ont. H.C. 1973).
18 [1973] 1 W.W.R. 608, 32 D.L.R. (3d) 241 (B.C.C.A. 1972).
1S[1972] 3 O.R. 783, 29 D.L.R. (3d) 519 (C.A.).
20 Marun
21
v. The Queen, [1965] 1 Ex. C.R. 280 (1964).
Re Laporte and The Queen, 8 C.C.C. (2d) 343, 29 D.L.R. (3d) 651 (Que. Q.B.
1972).
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[Vol. 10:1
under a general anaesthetic, could not be characterized as cruel and
unusual treatment as it is not "so regarded by the thousands of people
22
who undergo such treatment in our major hospitals every day".
B.
McCann v. The Queen
The decision in McCann v. The Queen23 is to date the only
application of the cruel and unusual treatment or punishment clause
which has not been reversed by a higher court. It was rendered in
December 1975, after the British Columbia Court of Appeal had dismissed the appeal in the Miller and Cockriell case. 24 This was an action
brought by a number of inmates of the British Columbia Penitentiary for
inter alia: (1) a declaratory judgment that their confinement in the
special correction unit (SCU) at this penitentiary amounted to the
imposition of cruel and unusual treatment or punishment contrary to
section 2(b) of the Canadian Bill of Rights; (2) a declaration that section
2.30(1) of the Penitentiary Service Regulations issued pursuant to the
Penitentiary Act, 25 which authorized their confinement, was inoperative
because of a conflict with the Canadian Bill of Rights; and (3) an order
compelling the defendants to act in accordance with the court's declarations.
The action was heard by Mr. Justice Heald of the Federal Court,
Trial Division. After a very detailed consideration of the evidence with
respect to the conditions in the SCU, the personal background and
history of the plaintiffs and the testimony of expert witnesses for both
sides, he concluded that all the plaintiffs, except one in respect of whom
no evidence was adduced, had established to his satisfaction that "their
confinement in the SCU at the B.C. Penitentiary amounted to the
imposition of cruel and unusual treatment or punishment and was
26
contrary to section 2(b) of the Canadian Bill of Rights."
Heald J. was not prepared to hold, however, that section 2.30(1) of
the Penitentiary Service Regulations was inoperative because of conflict
with provisions of the Canadian Bill of Rights. On this point he referred
to the statement of Laskin J. (as he then was) in Curr v. The Queen:
[C]ompelling reasons ought to be advanced to justify the Court in this case to
employ a statutory (as contrasted with a constitutional) jurisdiction to deny
operative effect to a substantive measure duly enacted by a Parliament
constitutionally competent to do so
. .
.Those reasons must relate to objective
and manageable standards by which a Court should be guided if scope is to be
27
found... to silence otherwise competent federal legislation.
22Id.
at 345, 29 D.L.R. (3d) at 653.
note 7.
24 Supra note 8.
25 S.O.R./62-90, issued pursuant to R.S.C. 1970, c. P-6.
23 Supra
26 Supra
note 7, at 608, 68 D.L.R. (3d) at 695.
27 [1972]
S.C.R. 889, at 899, 26 D.L.R. (3d) 603, at 613-14.
1978]
Cruel and Unusual Treatment or Punishment
He also cited the following assertion of Martland J. in Regina v.
Burnshine:
In my opinion, in order to succeed in the present case, it would be necessary
for the respondent, at least, to satisfy this Court that, in enacting s. 150
[Prisons and Reformatories Act, R.S.C. 1970, c. P-21] Parliament was not
seeking to achieve a valid federal objective."
In the light of this guidance provided by majority decisions in the
Supreme Court of Canada as well as his own statement that "there can
be no question of the need for administrative dissociation in a maximum
security penal institution, inter alia, '.
.
. for the maintenance of good
order and discipline in the institution,' as authorised under Regulation,
s. 2.30 (1)(a)", 29 Heald J. concluded, not surprisingly, that:
[t]he clearly stated objective of Regulation s. 2.30(l) is the maintenance of good
order and discipline within Canadian penitentiaries. This is, in my view, a valid
federal objective and for this reason, the Regulation is intra vires and cannot be
declared inoperative.U
C. Regina v. Shand
Regina v. Shand31 involved a charge of importing cocaine into
Canada contrary to section 5 of the Narcotic Control Act. 32 The
accused had pleaded guilty, and the only question before County Court
Judge Borins concerned subsection 5(2), which provided that a person
found guilty of the offence was "liable to imprisonment for life but not
less than seven years". On behalf of the accused it was argued that this
provision for a minimum sentence should be declared inoperative because it constituted "cruel and unusual .
.
. punishment" in contraven-
tion of section 2(b) of the Canadian Bill of Rights. The result would be
to retain section 5(2) with a maximum penalty of life imprisonment,
while the minimum sentence would be abrogated. Thus the Court could
impose a sentence of less than seven years, if it should be of the opinion
that such a sentence was warranted.
Following a very exhaustive review of Canadian and American
decisions regarding the phrase, including the decision of the British
Columbia Court of Appeal in the Miller and Cockriell case,3 relevant
writings, 34 a survey of sentences by appellate courts in narcotics cases
- [1975] 1 S.C.R. 693, at 707-08, 44 D.L.R. (3d) 584, at 594 (1974).
2Supra note 7, at 606, 68 D.L.R. (3d) at 693.
30 Id. at 609-10, 68 D.L.R. (3d) at 696.
31 Supra note 6.
32
R.S.C. 1970, c. N-1.
3Supra note 8.
4
" E.g., FINAL REPORT OF THE COMMISSION OF INQUIRY INTO THE NON-MEDICAL USE OF
DRUGS (1973); REPORT OF THE CANADIAN COMIrrrEE ON CORRECTIONS (1969); LAw REFOR.I
COMMISSION OF CANADA, IMPRISONMENT AND RELEASE, WORKING PAPER 11 (1975).
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[Vol. 10:1
over the previous two years, the history and reputation of the accused,
and the circumstances of the offence, Judge Borins concluded:
[A] sentence of seven years in this case would run foul of the provisions of s.
2(b) of the Canadian Bill of Rights as it would constitute the imposition of
'cruel and unusual treatment or punishment'. In relation to the crime committed, the person who committed it, the nature, quantity and value of the drug
involved, the current range of sentences for closely related offences in the
Food and Drugs Act and sentences for comparable crimes in other jurisdictions, a term of imprisonment for seven years is unusually excessive. . . [A]
compulsory sentence of seven years for a non-violent crime imposed without
consideration for the individual history and background of the accused is so
excessive that it 'shocks the conscience' and because of its arbitrary nature
fails to comport with human dignity.3
However, although the judge concluded that a sentence of seven years
in the case before him would contravene section 2(b) of the Canadian
Bill of Rights, he was not prepared to declare section 5(2) of the
Narcotic Control Act inoperative. Instead, he decided "to so construe
and apply s. 5(2) ... as to prevent the imposition of cruel and unusual
punishment", by holding that he was "not bound by the mandatory
minimum sentence of seven years provided by s. 5(2) .
..
,,3
He
sentenced the accused to a term of imprisonment of two years less one
day and a fine of $5,000.
The Crown appealed from the sentence to the Ontario Court of
Appeal which, in a unanimous decision, 37 allowed the appeal. In a
detailed and carefully reasoned judgment, Arnup J.A. was prepared to
"recognize that there could be a punishment imposed by Parliament that
is so obviously excessive, as going beyond all rational bounds of
punishment in the eyes of reasonable and right-thinking Canadians, that
it must be characterized as 'cruel and unusual' -. 38 However, he felt
that "a minimum sentence of seven years for importing a drug contrary
to the Act is not so disproportionate to the offence that the prescribed
penalty is cruel and unusual", particularly in view of the fact that "the
drug problem in Canada is still of major proportions", and that "this
type of national evil requires the opinion of Parliament as to appropriate
39
penalties, not that of individual Judges".
II.
THE MILLER AND COCKRIELL CASE
The case of Regina v. Miller and Cockriell concerned two accused
who were jointly charged with the murder of a police officer. Both were
convicted and, pursuant to the then sections 214(2) and 218(1) of the
" Supra
note 6, at 62,
1d. at 64, 64 D.L.R.
37 Supra note 6.
38
1d. at 79, 70 D.L.R.
39
Id.
at 80, 70 D.L.R.
36
64 D.L.R. (3d) at 660.
(3d) at 662.
(3d) at 409.
(3d) at 410.
1978]
Cruel and Unusual Treatment or Punishient
Criminal Code, sentenced to death. The appeal before the British
Columbia Court of Appeal was based upon, inter alia, the argument that
these sections of the Criminal Code were inoperative because they
authorized cruel and unusual punishment contrary to section 2(b) of the
Canadian Bill of Rights. In a four-to-one decision the Court of Appeal
held that the appeals should be dismissed. 40
Robertson J.A., on behalf of the majority, made brief reference to
American decisions regarding the death penalty in the light of the "cruel
and unusual punishment" clause in the Eighth and Fourteenth Amendments of the United States Constitution. He rejected these as throwing
"little, if any, light on the meaning of the same phrase in our Bill of
Rights" because: (1) the United States Supreme Court refers to debates
as a method of interpretation; (2) American decisions make use of "a
philosophical and political discussion that extends progressively beyond
the ordinary meaning of the words, a method that we do not use in
interpreting statutes"; and (3) this difference "in means and method" is
a result of the inclusion of the Bill of Rights in the Constitution of the
United States, whereas the Canadian Bill of Rights is "a statute enacted
by a legislative body". 4
Mr. Justice Robertson went on to say that although he assumed
hanging to be "cruel punishment", it was not "unusual". In the first
place, he said, it was not "unusual" in the ordinary and natural meaning
of the word. 42 Murder had been punishable by death in England from
time immemorial and in Canada both before and after Confederation,
even though since 1961 certain classes of murder had become punishable
by imprisonment for life instead of by death. The fact that, since 1962,
all sentences of death were commuted proved nothing more to him than
that the sentiment of the majority of members of the Cabinet had been
43
against capital punishment.
His second point, which appears to be the main one, was that
section 218 had just been revised and assented to by Parliament on
December 5, 1973 and that, since Parliament had not chosen to use the
magic words "shall operate notwithstanding the Canadian Bill of
Rights", this meant that in the opinion of Parliament the punishment of
death for murder was not an unusual punishment! On this point he said:
If that was the opinion of Parliament, I think that it is not open to this Court,
or any other Court, to substitute its opinion on a matter of fact for that of "Her
Majesty, by and with the advice and consent of the Senate and House of
Commons of Canada'.
44
His third line of reasoning was perhaps the most astonishing. He
stated that Parliament, by enacting sections 214 and 218, had by
41 Supra
41 Id. at
42
Id. at
43Id. at
4Id..
note 8.
53, 63 D.L.R. (3d) at 243-44.
54, 63 D.L.R. (3d) at 245.
55, 63 D.L.R. (3d) at 246.
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[Vol. 10: 1
necessary implication excluded the application of section 2 of the Bill of
Rights. In the face of the clear majority decision in the Drybones case,
the repetition of its principle in the majority decision in the Curr case, as
well as its affirmation by both the majority and minority in Hogan v.
The Queen,45 he nevertheless suggested that:
The Bill of Rights is no more sacrosanct than any other statute and the usual
canons of construction apply to and in respect of it as much as to and in
a repeal or exclusion does not have to be
respect of any other Act. Such
46
expressed: it can be implied.
In support of this proposition he made reference to decisions on
statutory interpretation, which did not involve interpretationsof the Bill
of Rights, and concluded:
Applying the principles of interpretation that I have referred to, and on the
assumption that Parliament thought that the punishment was an unusual one, I
am of the opinion that, as the provision in s. 2 of the Bill of Rights is so
inconsistent with and repugnant to the provisions in ss. 214 and 218 of the
Criminal Code that all the provisions are incapable of standing together, the
effect of the later enactment is to except, or exclude, the case in question here
from the operation of the earlier enactment. In other words, s. 214(l) and (2)
and s. 218(1) are to be applied in accordance with their terms.
If anything I have said appears to be inconsistent with the views of the
majority in R. v. Drybones ...
the Indian Act that was earlier
anything said about the effect
was obiter dictum: see Pigeon
I point out that it had to do with a provision in
in time than the Bill of Rights and consequently
of the Bill of Rights on subsequent legislation
J .... 11
Robertson J.A. appears to have forgotten that the decision of Pigeon J.
in the Drybones case represented a clear minority position which has not
been supported or affirmed in any subsequent case, except by Mr.
Justice Pigeon himself.
The only dissenting judge in the British Columbia Court of Appeal
was McIntyre J.A. The sole ground of his dissent 48 concerned the
interpretation and application to be given to the cruel and unusual
punishment clause. In a very lengthy and meticulous judgment he
dissented from every one of the points put forth in the majority decision
on this issue.
Although recognizing the difference between the American constitutional system and our own, he suggested that it did not follow "that all
judicial attitudes and expressions emanating from the United States are
inapplicable in Canada". 49 Particularly is this true, he suggested, when
the phrase is borrowed from the English Bill of Rights of 1688, which
[1975] 2 S.C.R. 574,
note 8, at 56,
47
Id. at 57, 63 D.L.R.
48
Id. at 63, 63 D.L.R.
49
ld. at 63, 63 D.L.R.
4-
46 Supra
48 D.L.R. (3d) 247 (1974).
63 D.L.R. (3d) at 246.
(3d) at 247-48.
(3d) at 251-52.
(3d) at 252.
Cruel and Unusual Treatment or Punishment
1978]
was itself intended to be a declaration of the "ancient
liberties" of Englishmen:
rights and
This principle as part of the law of England became the law of what is now a
part of Canada after the British conquest of the French colonies in North
America and was thus known in Canadian jurisprudence even before the
revolution which led to the creation of the United States of America. Framers
of the United States Constitution in the Eighth Amendment provided "excessive bail shall not be required nor excessive fines imposed nor crule and
unusual punishments inflicted". All American authorities agree that in employing these words they simply adopted the language of the English Bill of Rights
of 1688. They were then adopting English law which had become or was to
become Canadian law and consideration of this question and its mention in the
Canadian Bill of Rights involves the introduction of no foreign concept into our
Canadian system.- 0
Regarding the majority decision that it was not open to the Canadian courts to gainsay Parliament and set aside a statutory provision, he
made the 'obvious reply that while this may have been so before the
Drybones and Curr cases and, although a law offending the Bill of Rights
could not be declared unconstitutional and without legal effect unlike the
American situation, what the Canadian courts were required to do,
pursuant to section 2 of the Canadian Bill of Rights, was to construe
laws so as not to contravene its provisions. In the case before the court,
sections 214 and 218 of the Criminal Code would have to be construed in
such a manner that they would "not authorize the imposition of cruel
and unusual punishment". 51 Therefore, "[i]f it should be of the opinion
that the impugned sections authorize such punishment it would be the
duty of the court to declare the enactment inoperative to the extent that
such punishment is imposed. A consideration then of whether capital
punishment is cruel and unusual is necessary". 52
To the suggestion of Robertson J.A. that since Parliament enacted
these provisions after the passage of the Bill of Rights it could not be
assumed that in so doing it intended to impose a cruel and unusual
punishment, McIntyre J.A. replied:
In the face of the clear words of the Bill of Rights its seems to me, however.
that Parliament's intention on this question is immaterial. It is not the intent of
the enactment but its consequences which must be considered in measuring it
against the Bill of Rights. To that extent the Bill of Rights though only a statute
like any other has a constitutional effect limiting the exercise of legislative
53
power.
He then turned to a consideration of whether the punishment of
death could be said to be cruel and unusual. In contrast to the majority
"Id. at 63, 63 D.L.R. (3d) at 253.
1d. at 66, 63 D.L.R. (3d) at 256.
51
52 Id.
'Id.
at 66-67, 63 D.L.R. (3d) at 256.
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[Vol. 10:1
of the court, he referred freely to American sources. His reason for
doing so is sufficiently persuasive that it needs repeating here:
I am fully aware that American authority does not bind me and as I have said it
rests in part at least on a differing constitutional basis, but I have found it
helpful in seeking principles upon which this matter should be considered in a
civilized society. American references are not then made for the purpose of
citing legal authority. I consider54 and I refer to them in discussing the nature of
cruel and unusual punishment.
He therefore proceeded to consider a number of American decisions as
well as articles and reports published in Canada and the United States.
On the basis of these he proposed the following criteria by which capital
55
punishment could be judged:
(1) It would not be permissible to impose a punishment which
has no value in the sense that it does not protect society by
deterring criminal behaviour or some other social purpose.
(2) Since capital punishment can make no pretence at reformation or rehabilitation and its only purpose is deterrent and
retributive, it would amount to cruel and unusual punishment if it could not be shown that the deterrent value
outweighs the objections that can be brought against it.
(3) Even assuming some deterrent value, it would be cruel and
unusual if it:
a) is not in accord with public standards of decency and
propriety;
b) is unnecessary because of the existence of adequate
alternatives;
c) cannot be applied upon a rational basis in accordance
with ascertained or ascertainable standards; and
d) is excessive and out of proportion to the crimes it seeks
to restrain.
Based upon statistical data from the United States, the United
Kingdom and Canada, McIntyre J.A. concluded that there was insufficient evidence to show that capital punishment has a deterring effect.
He stated that: "It would be cruel and unusual to impose the ultimate
penalty on the mere chance that it may have a deterrent effect.""
On the question of whether or not capital punishment is acceptable
according to public standards of decency and propriety, McIntyre J.A.
suggested that one could not judge what is cruel and unusual by the
standards of 1688, when the English Bill of Rights was passed, or even
those of a century later when the American Constitution was adopted.
Rather, he accepted the suggestion of Chief Justice Warren of the
5
4 Id. at 68, 63 D.L.R. (3d) at 257-58.
55
56 Id.
at 71, 63 D.L.R. (3d) at 260.
1d. at 72, 63 D.L.R. (3d) at 261.
19781
Cruel and Unusual Treatment or Punishment
United States Supreme Court in Trop v. Dulles5 7 that the phrase must
"draw its meaning from the evolving standards of decency that mark the
progress of a maturing society". 58 McIntyre J.A. referred to Canadian
statistics on the numbers of persons actually executed, as a percentage
of those sentenced to death, to show that "for a century Canadians have
applied the death penalty with some reluctance". 5 9 He therefore concluded:
This indicates to me that the public sense of decency does not accept the
imposition of capital punishment in Canada today with that degree of unanimity
required to give it general social acceptance. A punishment lacking such
acceptance is in my view cruel and unusual and is not in accord with the public
standards of decency."
With respect to the test of adequate alternatives, it was obviously
necessary, McIntyre J.A. stated, to consider the alternative punishment
of life imprisonment. He compared American and Canadian statistics 6 '
which indicated that the time of release on parole of the person
sentenced to death could be varied (as it has been today with the
abolition of the death penalty) and further, that the record of convicted
murderers sentenced to life and released upon parole was very good. In
Canada, for example, in the period from 1920 to 1967, of the 119 capital
offenders whose sentences had been commuted to life imprisonment and
who were granted parole, only one had committed a second murder, for
which he was hanged in 1944. Between 1959 and 1967, of the 32 persons
whose death sentences had been commuted to life imprisonment and
who were later paroled, only one was convicted of another crime, and it
was not murder. Thus, he concluded:
It does not appear then that life imprisonment is not an adequate alternative to
the death penalty. The danger from release seems minimal, and in any event
complete control of the length of time to be served remains in the hands of
62
Parliament.
Concerning the matter of the application of the death penalty,
McIntyre J.A. referred to studies in Canada, the United States and the
United Kingdom which indicated that only a small proportion of those
convicted of murder punishable by death were actually executed. This
led to the inference that the death penalty was applied on an arbitrary
basis as opposed to an equal application on the basis of ascertainable
standards. In his opinion this was not criticism of those faced with "the
awesome responsibility for the decision between life and death" but
reflected the fact that "the best and most high-principled of men
.7 356
U.S. 86, 78 S.Ct. 590 (1958).
5'Supra note 8, at 73, 63 D.L.R. (3d) at 262.
"9 Id. at 75, 63 D.L.R. (3d) at 263.
60
1d. at 76, 63 D.L.R. (3d) at 265.
61
Id. at 79, 63 D.L.R. (3d) at 267.
62 Id.
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exercising discretion in matters of this gravity will apply individual tests,
individual ideas and beliefs, and the result which emerges will of
necessity bear an arbitrary complexion". 63 All the factors he considered on this point led him to conclude that "capital punishment,
because of its very nature and the deep-seated reluctance with which it
has been employed in Canada is and will if retained continue to be
arbitrarily applied" .64
Finally, he turned to the question of whether the death penalty is
excessive:
It has been accepted for centuries that the punishment imposed for a crime
should be in proportion to the offence. The undoubted right of the State to
punish infractions of the law must be limited to what is reasonably necessary to
restrain the offence and punish the offender. Excessive punishment ceases to
65
merit the legal, ethical and moral approval of society.
Therefore, on the basis of all the tests he selected, he concluded that
capital punishment is cruel and unusual:
There is no evidence to show that it has any special deterrent effect which
cannot be equally served by lesser punishments. In fact the general tenor of all
available evidence would indicate if it does not clearly prove that no special
deterrent effect attaches to it. Even if such an effect could be shown capital
punishment is no longer accepted as a legitimate and acceptable punishment by
a substantial majority of the community. It is not shown to be necessary for the
safety or proper regulation of the community or for the protection of those
responsible for the maintenance of law and order in the community, its
application is now and must necessarily by its very nature continue to be
arbitrary and it is excessive."
As a result, he held that "ss. 214 and 218 of the Criminal Code must be
so construed that the words importing punishment by death be inoperative", 67 and that the two accused should be sentenced to life imprisonment.
The appeal from the British Columbia Court of Appeal was dismissed unanimously by the Supreme Court of Canada.68 Although all
judges agreed in the result and on the disposition of the other issues in
the case, there were in fact three separate judgments: that of the Chief
Justice (Spence and Dickson JJ., concurring), which was devoted to a
careful and detailed analysis of the cruel and unusual treatment or
punishment clause; that of Ritchie J. (Martland, Judson, Pigeon and de
Grandpr6 JJ., concurring), which dealt rather briefly with the clause and
more extensively with the other issues raised in the case; and finally, a
very brief judgment of Beetz J., in which he concurred in the result and
r3
64 Id.
65
at 82-83, 63 D.L.R. (3d) at 270.
1d. at 83, 63 D.L.R. (3d) at 271.
Id. at 84, 63 D.L.R. (3d) at 272.
at 85-86, 63 D.L.R. (3d) at 273.
66 Id.
67Id.
6
8Supra note I.
1978]
Cruel and Unusual Treatment or Punishment
concurred in part with the judgment of Mr. Justice Ritchie, while
reserving his judgment on another part.
The balance of this paper will analyze the Supreme Court's judg-
ments under two headings: (1) the interpretation and application of the
Canadian Bill of Rights; and (2) the meaning of the cruel and unusual
treatment or punishment clause.
III.
THE INTERPRETATION
AND APPLICATION OF THE
CANADIAN BILL OF RIGHTS
It should be recalled that in the Drybones case, Ritchie J., speaking
on behalf of the majority, laid down the following rule on legislation
found inconsistent with a provision of the Bill of Rights:
[I]f a law of Canada cannot be 'sensibly construed and applied' so that it does
not abrogate,
declared by
declared by
withstanding
abridge or infringe one of the rights and freedoms recognized and
the Bill, then such law is inoperative *unless it is expressly
an Act of the Parliament of Canada that it shall operate notthe Canadian Bill of Rights'. I
Later, in the Curr case, Laskin J. (as he then was) delivering the
majority judgment declared: "that [the Bill of Rights) may have a
sterilizing effect upon federal legislation was decided by this Court in
Regina v. Drybones",7 0 and went on to say:
[Flederal law enacted after the date of the CanadianBill of Rights as well as
pre-existing federal law may be found to run foul of the prescriptions of the
7
CanadianBill of Rights. 1
Similarly, in the Hogan case, both the majority and minority judgments
reaffirmed these propositions. Ritchie J., who gave the majority decision, stated:
The case of R. v. Drybones ... is authority for the proposition that any law of
Canada which abrogates, abridges or infringes any of the rights guaranteed by
the CanadianBill of Rights should be declared inoperative and to this extent it
accorded a degree of paramountcy to the provisions of that statute ..
.
In rendering the minority judgment, Laskin C.J.C. stated:
We have a statutory policy to administer, one which this Court has properly
recognised as giving primacy to the guarantees of the Canadian Bill of Rights
by way of a positive suppressive effect upon the operation and application of
federal legislation: see R. v. Drybones.... The result may be, as in Drybones.
to render federal legislation inoperative or, as in Brownridge, federal legislation
may become inapplicable in the particular situation while otherwise remaining
operative.7 3
69Supra note 5, at 294, 9 D.L.R. (3d) at 482.
7
oSupra note 27, at 892, 26 D.L.R. (3d) at 608.
71Id. at 893, 26 D.L.R. (3d) at 609.
72
Supra note 45, at 584, 48 D.L.R. (3d) at 434.
73
Id. at 589-90. 48 D.L.R. (3d) at 438.
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These assertions as to the effect of the Bill of Rights have not been
questioned since the Drybones case except, possibly, by Pigeon J.
However, it must be stated that the Drybones case constitutes the only
example where a majority of the Supreme Court held a provision in a
federal statute to be inoperative because of its inconsistency with one of
the terms of the Bill of Rights. In all other cases where an inconsistency
was found, a majority was either able to "construe and apply" a federal
provision in accordance with the requirements of the Bill of Rights, as in
Brownridge v. The Queen74 and Lowry and Lepper v. The Queen ;7" or to
uphold the principle of Drybones though failing to devise a remedy with
respect to an administrative practice which did not conform with the Bill
of Rights, as in the Hogan case. 76 However, the most common result
was that an inconsistency was not found. Since the Miller and Cockriell
case falls into this latter category, it is that result, and more particularly,
the interpretive techniques used to achieve that result, that will be
discussed here.
In concluding that it was neither the intention nor the effect of
section 2(b) of the Bill of Rights to render inoperative the death penalty
provisions of the Criminal Code, Mr. Justice Ritchie did not proffer his
own definition of the "cruel and unusual treatment or punishment"
clause. He did indicate that the phrase "cruel and unusual" should be
read conjunctively, 77 and that reference should not be made to decisions
of United States courts because their Bill of Rights is too different in its
constitutional status to be resorted to as an interpretational aid. 78 The
first of these statements was made without explanation, while the
second was justified by the simple assertion that Ritchie J. was "satisfied" that the Canadian Bill of Rights and the United States Constitution
(with its Bill of Rights) "differ so radically in their purpose and content
that judgments rendered in interpretation of one are of little value in
interpreting the other". 79 These points will be dealt with in more detail,
but it should be pointed out that both of these assertions were clearly
obiter, as they followed his conclusion that the death penalty provisions
were not rendered inoperative by section 2(b) of the Canadian Bill of
Rights.
His reasoning in this respect is somewhat more ample, if not exactly
easier to understand. It would appear to be rooted in a proposition he
fostered in earlier decisions, which was later expanded by Mr. Justice
Martland, and to which Ritchie J. returned in Miller and Cockriell. This
proposition seems to evolve from the view that, since section 1 of the
Canadian Bill of Rights refers to rights and freedoms which "have
74[1972] S.C.R. 926, 28 D.L.R. (3d) 1.
73[1972] 5 W.W.R. 229, 26 D.L.R. (3d) 224 (S.C.C.).
76
Supra note 27.
71Supra
78
d.
79Id.
note 1,at 717-18, 70 D.L.R. (3d) at 345.
19781
Cruel and Unusual Treatment or Punishment
existed and shall continue to exist", reference must be made to the date
when the Bill was enacted in order to determine its meaning. As section
2 receives its controlling force from section 1 and protects only those
rights, no new rights were created by the Bill of Rights. Furthermore,
since only "existing" rights were protected, any feature of our laws
which existed when the Bill of Rights was enacted, such as the death
penalty or, presumably, whipping, could not possibly be found to be
contrary to the Bill of Rights.
The starting point for the proposition that the Bill of Rights did not
create any new rights but rather was concerned only with "existing"
rights, came in the Robertson and Rosetanni8° case. There, in order to
determine whether the legislative imposition of Sunday observance in
the Lord's Day Act was in conflict with the "freedom of religion" set
out in the Bill of Rights, Ritchie J. referred to section I and asserted:
It is to be noted at the outset that the Canadian Bill of Rights is not concerned
with 'human rights and fundamental freedoms' in any abstract sense, but rather
with such 'rights and freedoms' as they existed in Canada immediately before
the statute was enacted81
After a reference to the opening paragraph of section 2 he stated what
was, in his opinion, required of him:
It is accordingly of first importance to understand the concept of religious
freedom which was recognized in this country before the enactment of the
Canadian Bill of Rights ....
82
Nevertheless, or perhaps in line with this, near the end of his judgment
Ritchie J. noted that statutes for the purpose of safeguarding Sunday
observance were enacted in this country even before Confederation, and
that "historically, such legislation has never been considered as an
interference with the kind of 'freedom of religion' guaranteed by the
Canadian Bill of Rights".8A
When, in the Drybones case, it was suggested in argument that the
rights and freedoms recognized and declared by the Bill of Rights "must
have reference to and be circumscribed by the laws of Canada as they
existed on the 10th of August, 1960 when the Bill was passed", 8 4 Mr.
Justice Ritchie specifically rejected such an interpretation of his earlier
judgment which implied that rights and freedoms proclaimed in the Bill
of Rights were "circumscribed by the provisions of the Canadian
statutes in force at the date of its enactment"." The earlier case was
not to be "any authority for the suggestion that the Bill of Rights is to
be treated as being subject to federal legislation existing at the time of
- [1963] S.C.R. 651, 41 D.L.R. (2d) 485.
Id. at 654, 41 D.L.R. (2d) at 491.
Id. at 655, 41 D.L.R. (2d) at 492.
83Id. at 658, 41 D.L.R. (2d) at 494.
84Supra note 5, at 295, 9 D.L.R. (3d) at 482.
"IId. at 296, 9 D.L.R. (3d) at 484.
81
82
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its enactment". 8 6 In particular, he went on to make reference to both
sections 2 and 5 of the Bill of Rights, to the effect that the interpretation
to be given applied to "every law of Canada enacted before or after the
unless Parliament makes an express
coming into force of the Bill,
7
declaration to the contrary",.
Accordingly, in rendering the majority judgment in the Curr case,
Laskin J. started out with the following propositions:
I deem it prudent to put at the forefront of these reasons two rather obvious
propositions; first, the CanadianBill of Rights did not freeze the federal statute
book as of its effective date, which was August 10, 1960; and, second, federal
law enacted after the date of the CanadianBill of Rights as well as pre-existing
federal law may be found to run foul of the prescriptions of the CanadianBill
s
of Rights."
Ritchie J., for his part, while agreeing in the result, based his conclusion
on his "understanding that the meaning to be given to the language
employed in the Bill of Rights is the meaning which it bore in Canada at
the time when the Bill was enacted".8 9 He defined the "due process of
law" clause in section l(a) of the Bill as meaning "according to the legal
processes recognized by Parliament and the courts in Canada". 90
In the 1973 Lavell case, 91 Ritchie J. quoted with approval the
above-mentioned statement of Laskin J. in Curr, and affirmed that, in
his view, "the opening words of s. 2 of the Bill of Rights are ...
determinative of the test to be applied in deciding whether the section
here impugned is to be declared inoperative". 92 However, in deciding
how the "equality before the law" phrase is to be construed, he again
reiterated the statement he had made in Curr to the effect that "the
meaning to be given to the language employed in the Bill of Rights is the
meaning which it bore in Canada at the time when the Bill was
enacted". 93 In determining this meaning he relied on the paragraph in
the preamble to the Bill of Rights which he felt supported his interpretation that "equality before the law" meant "the rule of law". This led
him to consider the definition of "the rule of law" given in the
twenty-first edition of Stephen's Commentaries on the Laws of England,
published in 1950, which in turn led him to a definition given to these
phrases by Dicey in 1885. 91
Ritchie J.'s approach to interpretation of section 2 was carried a
step further by Martland J. in Regina v. Burnshine95 in the course of
86Id.
87
88
8
at 298, 9 D.L.R. (3d) at 485.
Supra note 27, at 893, 26 D.L.R. (3d) at 609.
Id.
9Id.at 916, 26 D.L.R. (3d) at 607.
90Id.
9,Attorney-General of Canada v. Lavell, [1974] S.C.R. 1349, 38 D.L.R. (3d) 481
(1973). 2
9 Id. at 1364, 38 D.L.R. (3d) at 493.
3
9 1d. at 1365, 38 D.L.R. (3d) at 494.
941d. at 1365-66, 38 D.L.R. (3d) at 494-95.
"sSupra note 28.
Cruel and Unusual Treatment or Punishment
1978]
developing one of three reasons why he did not find the impugned
legislation to be contrary to the Canadian Bill of Rights. In the course of
his judgment he made reference to the fact that section 1 declared that
certain defimed rights and freedoms "have existed and shall continue to
exist". He then said:
The Bill did not purport to define new rights and freedoms. What it did was to
declare their existence in a statute, and, further, by s. 2, to protect them from
infringement by any federal statute. 96
Later, he suggested that the Bill of Rights, by its express wording,
declared and continued "existing" rights and freedoms:
It was those existing rights and freedoms which were not to be infringed by any
federal statute. Section 2 did not create new rights. Its purpose was to prevent
infringement of existing rights. It did particularise. in paras. (a) to (g). certain
rights which were a part of the rights declared in s. I. ...."
This description of the evolution from the initial statement by
Ritchie J., in Robertson and Rosetanni v. The Queen, that the Canadian
Bill of Rights is concerned with such rights and freedoms as "existed in
Canada immediately before the statute was enacted", to that of Mr.
Justice Martland, in the Burnshine case, that "section 2 did not create
new rights" may seem lengthy, but it constitutes the sum total of the
discussion available in support of that fundamental approach to the
interpretation of the Canadian Bill of Rights. This would appear to be all
the guidance there is to explain where Mr. Justice Ritchie, in the Miller
and Cockriell case, found the source of the following two inter-related
propositions:
(1) The effect of s.2(b) of the Bill of Rights must be considered in light of
9
s. .8
(2) Section 2 did not create new rights."
The only explanation Mr. Justice Ritchie offered for those two assertions was that he subscribed "to the analysis of the meaning and effect
of ss. I and 2 of the Bill of Rights to be found in the reasons for
judgment of Mr. Justice Martland, speaking for the majority of this
Court in R. v. Burnshine . . .".1oo
I believe that this approach is not only severely detrimental to any
possible future application of the Canadian Bill of Rights, but also that it
will ultimately prove to be unworkable. It is respectfully submitted that:
(1) it is not in accord with constitutional adjudication as indicated by the
Judicial Committee of the Privy Council; (2) it seems to be contrary to
96
1d.
97
98
at 702, 44 D.L.R. (3d) at 590.
1d. at 705, 44 D.L.R. (3d) at 592-93.
Supra note 1, at 714, 70 D.L.R. (3d) at 342.
lId. at 715, 70 D.L.R. (3d) at 343.
100
Id.
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the plain text of the Bill of Rights; and finally, (3) it contradicts a
number of majority decisions of the Supreme Court itself with respect to
the Bill of Rights. Each of these three criticisms will be discussed in
turn.
A.
The Privy Council
An interpretation of the Canadian Bill of Rights which "freezes"
the meanings given to its concepts as they were understood in 1960, is
similar to the approach taken by the Supreme Court of Canada in 1928
when it decided that the word "persons" in section 24 of the B.N.A.
Act did not include female persons. 10 1 In coming to that conclusion all
of the judges devoted themselves to deducing what the word "persons"
could have meant in 1867, or earlier in Canadian constitutional history.
However, when the case came before the Judicial Committee of the
Privy Council, as Edwards v. Attorney-Generalfor Canada,0 2 the Lord
Chancellor, Lord Sankey, suggested that an appeal to history was not
conclusive and resulted in an effect which was "a relic of days more
barbarous than ours".10 3 Rather, he said, the basic constitutional
document was "a living tree capable of growth and expansion within its
natural limits". 10 4 He went on to quote from a leading Canadian
constitutionalist, Cl6ment, that the B.N.A. Act "should be on all
occasions interpreted in a large, liberal and comprehensive spirit, considering the magnitude of the subject with which it purports to deal in
very few words". 10 5 Can a court do less with the Bill of Rights?
B.
The Text of the Bill of Rights
More important is the second criticism, namely that a textual
analysis of the Canadian Bill of Rights will lead one to conclude that it
did not declare only "existing" rights and freedoms and that although
section 2 should be considered in light of section 1, it is not necessarily
restricted to it.
The opening paragraph of section 1 must be read disjunctively, or
else it will contain a legislative lie. Quite simply, both at common law
and at civil law, and at the federal and provincial levels, discrimination
by reason of "race" and "national origin" as well as "sex" has existed.
One need only review the history of the granting of the female franchise,
or the civic and political disabilities of people of African or Asiatic
origin to realize this. As late as 1940, the Supreme Court of Canada held
that, apart from the case of hotel-keepers and common carriers, neither
"0'Re
Section 24 of the B.N.A. Act, [1928] S.C.R. 276, [1928] 4 D.L.R. 98.
[1930] A.C. 479, [1929] 3 W.W.R. 124 (P.C.).
13 Id. at 481, [1929] 3 W.W.R. at 128.
10 4
Id. at 489, [1929] 3 W.W.R. at 136.
105 Id. at 489, [1929] 3 W.W.R. at 137.
102
1978]
Cruel and Unusual Treatment or Punishment
the common law nor the civil law prohibited discrimination. 0 6 In
legislation, discrimination continued after the enactment of the Canadian
Bill of Rights in 1960. Discrimination in immigration legislation was not
removed by the time of the enactment of the Canadian Bill of Rights;
native peoples did not have the franchise until after 1960. Therefore,
although one might argue that the rights listed in paragraphs (a) to (f) of
section 1 had "existed" for some people in Canada, they certainly did
not exist "without discrimination by reason of race, national origin,
colour, religion or sex". Surely one would expect the legal profession,
including the Supreme Court of Canada, not to presume that Parliament
had enacted a legislative lie. The only possible way to avoid that
conclusion is to read the opening paragraph of section I as implying that
the named rights, which had existed for some people, should thenceforth
exist without discrimination. Therefore, the rights named in paragraphs
(a) to (f) were not "existing" rights; they were new rights!
The opening paragraph of section 2 must also be read disjunctively.
The first part refers to the rights and freedoms recognized and declared
in section 1, while the second part refers "in particular" to a number of
rights enumerated in section 2. Unless some of these are considered as
new rights, one again condones a legislative lie. With respect to section
2(a), for example, which prohibits "arbitrary detention, imprisonment or
exile", need one go further than to recall the experience of the
Japanese-Canadians at the end of World War II, when the Judicial
Committee of the Privy Council upheld the right of the Canadian
government to deport Japanese citizens and "exile" Japanese-Canadian
citizens? 10 7 The right in section 2(c)(ii) of a person arrested or detained
to retain and instruct counsel without delay was certainly not one that
could be asserted prior to 1960. Although the Supreme Court has not
given a "large, liberal and comprehensive" interpretation to this right in
the cases since 1960,108 nevertheless it has affirmed that, since the
enactment of the Canadian Bill of Rights, such a right does exist. The
right to counsel in section 2(d) when a person is compelled to give
evidence before a court, tribunal, commission, or board is another which
could not be asserted before 1960. The same is true of the right to an
interpreter in section 2(g). All of these, plus the specific use of the
words "and in particular" indicate that although section 2 must be
considered in the light of section 1, as was asserted in the majority
decision in Curr v. The Queen, section 1 "is given its controlling force
over federal law by its referential incorporation into section 2".109
1
06 Christie v. York Corp., [1940] S.C.R. 139, [1940] i D.L.R. 81 (1939).
Comm'n on Japanese Canadians v. Attorney-General of Canada,
[1947] A.C. 87, [1947] 1 D.L.R. 577 (1946).
108See, e.g., Regina v. Steeves, [19641 1 C.C.C. 266. 42 C.R. 234 (N.S.S.C. 1963):
Brownridge
v. The Queen, supra note 74.
109 Supra note 27, at 896, 26 D.L.R. (3d) at 611.
107Co-operative
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C. The Record of the Supreme Court
Finally, one must consider the Supreme Court of Canada decisions
on the Canadian Bill of Rights to determine whether that Court has ever
based any decision solely upon the ground that no new rights were
created.
Mr. Justice Ritchie has put forth the proposition that the meaning to
be given to the language employed in the Bill of Rights is the meaning
which it bore in Canada at the time when it was enacted, in the
Robertson and Rosetanni, Lavell and Curr cases.
It should be noted that his statement in Robertson and Rosetanni
not only preceded his own majority judgment in the Drybones case and
must therefore be read subject to that later decision, but also that it was
one of two grounds for his decision in the earlier case. Mr. Justice
Ritchie looked not only to the definition of "freedom of religion" prior
to 1960; he also considered the effect of the Lord's Day Act and
concluded that it was secular and had no reference to religion." 0
In the Lavell case, Ritchie J. gave judgment on behalf of four of the
nine judges, while Laskin C.J.C. gave the judgment of four others.
Pigeon J. wrote a separate judgment in which he concurred in the result
achieved by Mr. Justice Ritchie, but for the reasons he had expressed in
his own dissenting judgment in the Drybones case, where he did not
refer to 1960 concepts.111 In fact, one might say that Pigeon J. has
never changed his view that the Canadian Bill of Rights does not protect
any rights, but rather is a mere aid to interpretation. Therefore, there
was no clear majority in Lavell. Further, Mr. Justice Ritchie, in
attempting to define "equality before the law", adopted the definition
formulated by Dicey in 1885.112 He made no reference to definitions
current in the 1950s among such international institutions as the United
Nations or the International Commission of Jurists in which Canadian
and English jurists participated.
In the Curr case, Mr. Justice Ritchie's reiteration of his view that
the language of the Bill of Rights must be given its 1960 meaning, not
only formed part of the minority decision, but on this point seems to
have received the concurrence only of Chief Justice Fauteux. "1 3 Martland J., who gave the judgment of himself and Judson J., stated the
following:
I agree with the reasons given by my brother Laskin. I also agree with the
reasons of my brother Ritchie, but, in so doing, I do not adopt, as final, any
specific definition of the phrase "due process of law", as used in s. 1(a) of the
Canadian Bill of Rights.114
110Supra note 80, at 658, 41 D.L.R. (2d) at 494.
"I2 Supra note 91, at 1390, 38 D.L.R. (3d) at 500.
1
13
Id.
at 1366, 38 D.L.R. (3d) at 495.
Supra note 27, at 914, 26 D.L.R. (3d) at 606.
14Id.
1978]
Cruel and Unusual Treatment or Punishment
Could this be taken as agreement with the 1960 concept or just the
opposite?
Mr. Justice Laskin delivered the majority judgment. Although he did
not find the legislation before him to be inconsistent with the Canadian
Bill of Rights, he did not subscribe to Ritchie J.'s theory. In fact, he
specifically rejected any "frozen statute" theory and proceeded to a
long and detailed analysis of the possible meanings of the "due process
of law" clause in section I and other rights in section 2. t15 His whole
approach was inconsistent with that of Mr. Justice Ritchie.
The related proposition that no new rights were created had its
origin in the judgment of Martland J. in Regina %'. Burnshine. This
assertion must, however, be considered in the light of the following
points. In the first place, in the portion of his judgment dealing with the
effect of the Canadian Bill of Rights, Martland J. started by quoting at
considerable length the dissenting opinion in the Court of Appeal, which
he approved, that the rationale of the impugned legislation could
constitute a valid legislative objective." 6 He finished his judgment by
himself assessing the validity of the legislation before him. In so doing,
he adopted an earlier statement of Laskin J., in Curr v. The Queen, that
"compelling reasons ought to be advanced to justify the court . . . to
deny operative effect to a substantive measure duly enacted by a
Parliament constitutionally competent to do so","17 and concluded that
the party challenging a provision must satisfy the court that "Parliament
was not seeking to achieve a valid federal objective"."'
Second, Martland J. referred to the Drybones case as being the only
one in which the Supreme Court had held a section of a federal statute
to be inoperative because of infringement of the Bill of Rights. In the
course of analyzing that case, and its reaffirmation in Lavell, Mr. Justice
Martland placed emphasis on "harsher punishment" as an essential
factor which was not present in the legislation before him. 10 Therefore, his reference to the Canadian Bill of Rights as not creating new
rights is only one of three possible grounds for his decision, and is
probably merely obiter. The latter conclusion is supported by the fact
that when he gave the unanimous decision of the Supreme Court of
Canada in the Prata case, 120 holding that a provision in the Immigration
Act was not contrary to the Bill of Rights, this portion of his judgment
was very brief and was based only upon the following description of the
Burnshine decision:
115Id. at 897, 26 D.L.R. (3d) at 611-12.
"6 Supra note 26, at 707, 44 D.L.R. (3d) at 595.
7
1 Supra note 25, at 899, 26 D.L.R. (3d) at 613.
"8 Supra note 27, at 707-08, 44 D.L.R. (3d) at 594.
9
1 1d. at 706-07, 44 D.L.R. (3d) at 594-95.
120 Prata v. Minister of Manpower and Immigration, [1976
(3d) 383 (1975).
1 S.C.R. 376. 52 D.L.R.
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This Court has held that s. I(b) of the CanadianBill of Rights does not require
that all federal statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it is enacted for
121
the purpose of achieving 'a valid federal objective ...
Furthermore, in the Burnshine case, the decision of Martland J.
represented that of four members of the court. Two others, Ritchie and
Pigeon JJ., concurred, but, it would appear, not necessarily or perhaps
not even at all because of any reference to "existing" rights. Mr. Justice
Ritchie gave his concurring reasons in two paragraphs: in the first he
dealt with the purpose of the legislation, and in the second, compared
the legislation to that considered in the Drybones case for the purpose of
determining whether it provided "that one group of individuals is to be
treated more harshly than another under the law". 122 Thus, Ritchie J.'s
concurring judgment seems to be based not on that part of Mr. Justice
Martland's judgment dealing with "existing" rights, but rather on the
two other parts which involved an analysis in the light of "valid federal
objectives" and Drybones. As far as the judgment of Mr. Justice Pigeon
is concerned, it reads as follows:
I agree with Martland J. subject to the views I have expressed in A. G. of
Canada v. Lavell and Isaac v. Bedard so far as they happen to be different
23
from those he has expressed.
This appears to mean that the Bill of Rights, in Pigeon J.'s opinion,
cannot be more than an interpretation statute and certainly was never
intended to guarantee any rights.
The judgment of the three dissenting judges was given by Laskin
C.J.C., who did not adopt a "1960 concepts" interpretation.
Thus, in the Burnshine case, the proposition that the Bill of Rights
created no new rights was one of three reasons given by Martland J.,
and it was the only one of the three that did not have majority support.
As against these references to 1960 concepts, or to "existing"
rights, one must consider those Supreme Court decisions where the
majority clearly adopted a different interpretation. Regina v. Curr and
Regina v. Hogan represent cases where legislation or an administrative
act was not held inoperative because of inconsistency with the Canadian
Bill of Rights. The Curr case has already been discussed to show that
the majority in that case rejected the notion that 1960 concepts deter124
mined the issue.
In the Hogan case, although the majority judgment of Mr. Justice
Ritchie was to the effect that the Canadian Bill of Rights did not import
the American exclusionary rule with respect to illegally obtained evidence, and that the common law rule on admissibility of illegally
121Id.
at 383, 52 D.L.R. (3d) at 387.
'M Supra note 27, at 708, 44 D.L.R. (3d) at 595.
123 Id.
12M
at 708-09, 44 D.L.R. (3d) at 595.
See text accompanying notes 88 to 93, supra.
1978]
Cruel and Unusual Treatment or Punishment
obtained evidence was not abrogated by the Canadian Bill of Rights,'5
nothing was said about "existing" rights. In fact, if Ritchie J. spent so
much time on the admissibility of illegally obtained evidence, it must
have been because he assumed that the Canadian Bill of Rights had
established a new right; namely, the right to obtain and instruct counsel
upon arrest or detention. That right did not exist before the enactment
of the Canadian Bill of Rights and was the only "illegality" in the
procedure in the case before him. Therefore, it has to be inferred that
both Mr. Justice Ritchie in the majority, and clearly Laskin C.J.C. in the
minority, assumed that the Canadian Bill of Rights was not dealing with
"existing" rights, but rather with a new right to counsel. The only
dispute between them was whether or not, in the absence of any
indication in the Bill itself as to the result or remedy to follow, the Court
should devise a remedy, and more particularly, adopt the remedy of
excluding illegally obtained evidence.
Finally, one must remember that in the judgments of Mr. Justice
Ritchie and Mr. Justice Martland referred to above, the Drybones
decision was never questioned. In fact, it has been repeatedly reaffirmed. Consider the Drybones case from the point of view of 'existing"
rights and 1960 concepts. In 1960, when the Canadian Bill of Rights was
enacted, the Indian Act contained provisions regarding the consumption
of alcohol by Indians. These had been in existence for many years.
When the Court concluded that these provisions contravened the
"equality before the law" clause of section I of the Bill of Rights, it
could not possibly have been giving an interpretation to that clause
which would have been known in 1960 or for more than three-quarters
of a century before that. Regardless of what Mr. Justice Ritchie said, or
meant, in the Robertson and Rosetanni case, about the meanings of
concepts in 1960,126 this had to be overridden by his own majority
decision in the Drybones case. Since the subsequent judgments which
make reference to 1960 concepts or to "existing" rights do not rely
merely upon that ground for the conclusions reached, but do reaffirm
the authority of the Drybones case, the references to 1960 concepts have
to be taken as obiter, and the decisions must be explained on other
grounds. Otherwise, one would have to conclude that within the space
of six years, from Drybones in 1970 to Miller and Cockriell in 1976,
majorities in the Supreme Court have gone every which way. Surely it
would be disrespectful to believe that. Consistency must be found even
if it is not readily apparent.
Returning to the Miller and Cockriell case, it should be reemphasized that the criticism expressed in this paper is not so much of
the conclusion reached, as of the reasoning or lack of it by which that
11-Supra
note 45, at 583, 48 D.L.R. (3d) at 437.
121See text accompanying notes 80 to 83. supra.
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conclusion was reached. In other words, it is necessary to recognize that
although one may believe that imposition of the death penalty is cruel
and unusual punishment, one could also understand that a genuine effort
at assessing the penalty in the light of the clause could result in the
opposite conclusion. The Chief Justice, although not restricting himself
to the concepts prevalent in 1960, and after a detailed assessment of the
possible tests that could be applied under the "cruel and unusual
punishment" clause, concluded that the death penalty provisions in the
Criminal Code were not inoperative because of the Canadian Bill of
Rights.
The "frozen concepts" interpretation forces the adoption of some
rather odd rationalizations. Thus, for example, Mr. Justice Ritchie
referred to the fact that, since the enactment of the Bill of Rights,
Parliament had amended the provisions of the Criminal Code defining
the types of culpable homicide which are punishable by death on three
occasions, the first within a year after the passing of the Bill. 127 In the
light of this, and in the light of his suggested interpretation, he appears
to have given two very surprising applications to two provisions in the
Bill of Rights. The first of these is the non obstante clause in section 2.
After noting that none of the amendments of the death penalty provisions contained a declaration that it was to operate notwithstanding the
Bill of Rights, 28 he observed that the fact that Parliament "saw fit to
retain the death penalty as part of the Criminal Code after the enactment
of the Bill of Rights constitutes strong evidence of the fact that it had
never intended that the word 'punishment' as employed in s. 2(b) should
preclude punishment by death". 129 Did he mean by this that the
absence of the non obstante clause in legislation enacted after the Bill of
Rights meant not only that Parliament did not believe its legislation was
contrary to the Bill of Rights, but that the courts must so conclude? If
so, we have reached the point where the Bill of Rights can never have
any effect. On the one hand, according to the express terms of section 2,
inclusion of the non obstante clause excludes the application of the Bill
of Rights. On the other hand, the absence of the non obstante clause in
legislation enacted after the Bill of Rights would also, according to the
reasoning of Mr. Justice Ritchie, appear to indicate that any words used
in the Bill of Rights could not possibly be contrary to legislation enacted
before or after the Bill of Rights.
This conclusion is made even more obvious when one looks at the
paragraph immediately following in which Mr. Justice Ritchie states:
If it were otherwise it would mean in light of s. 5(2) that the provisions for
punishment by death contained in the amendments had been rendered inoperative in advance of their enactment. I cannot accept that proposition.3 0
27
' Supra note I, at 716, 70 D.L.R. (3d) at 343-44.
28
' 11d. at 716, 70 D.L.R. (3d) at 344.
2
1 9 d.
130Id.
1978]
Cruel and Unusual Treatment or Punishment
What can this statement possibly mean? Obviously it cannot mean that
an amendment which is not yet enacted can be challenged. Only a "law
of Canada" is subject to the Bill of Rights, certainly not a mere
proposal. If Ritchie J. cannot accept the proposition he puts forth in the
first sentence, it must mean that he is not prepared to accept a
proposition that enactments subsequent to the Bill of Rights can be
rendered inoperative; but if so, that directly contradicts the statement he
made in Drybones, which both he and other judges have repeatedly
reaffirmed.
Rather than continue this discussion on the unworkability of an
approach to the interpretation of the Canadian Bill of Rights which relies
upon the concepts of 1960, it might be more expedient to consider why
Ritchie J. felt he had to come to the conclusion he did, as well as a
possible alternative basis for this conclusion. The reason he gives arises
from the Criminal Law Amendment Act (2), 1976,131 which was the
statute repealing the death penalty provisions of the Criminal Code.
Section 25 of the amending Act provided that any person who was under
sentence of death for murder which had not been commuted would
thereupon have a sentence of imprisonment for life without eligibility for
parole until he had served twenty-five years. Therefore, Mr. Justice
Ritchie reasoned:
If s. 2(b) of the Bill of Rights had already had the effect of rendering ss. 214
and 218 inoperative, then these appellants could not have been found guilty of
'murder punishable by death' and, as the law then stood, the only sentence
which could have been imposed would have been one of imprisonment for life
under s. 214(3). The question therefore becomes one of First importance to the
appellants because if these appeals were to be allowed rather than dismissed,
and if the convictions 'for murder punishable by death' were to be quashed,
there would be no provision rendering either of the appellants ineligible 'for
parole until he had served 25 years of his sentence'. 13
Even if this were an important consideration, it should be pointed
out again that although the Chief Justice did not find the death penalty
provisions contrary to section 2(b), he did not feel that he was bound by
1960 concepts in reaching that conclusion. Moreover, Mr. Justice
Ritchie's other basis for coming to this conclusion, which will be
discussed next, would have sufficed. And, if the Supreme Court had
come to the opposite conclusion and had held the death penalty
provisions inoperative, it would not have been a major undertaking for
Parliament to make the necessary amendments to section 25 of the
Criminal Law Amendment Act (2), 1976. The anomalies of not doing so
would have been too obvious for Parliament not to have acted.
Finally, in line with the arguments presented here that it is not the
conclusion reached, as much as the means used to reach that conclusion
131 S.C. 1974-75-76 c. 105.
32
1 Supra note 1, at 724, 70 D.L.R. (3d) at 351.
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which is being objected to, perhaps one could suggest that Mr. Justice
Ritchie's references to 1960 concepts and "existing" rights were obiter
because he concludes his judgment with the following:
I have considered it important . . . to develop the argument that when the
provisions of s. 2(b) of the Bill are read in light of those of s. l(a), it becomes
apparent that Parliament did not thereby intend to create any right in the
individual not to be deprived of life if he were duly convicted of 'murder
punishable by death', on the ground that such deprivation constituted cruel and
unusual treatment. 13
This interpretation, that the rights listed in section 2 must be
considered in the light of those in section 1, does not require one to
conclude as well "that section 2(b) did not create new rights". Rather,
one might say that section 2 details the ways in which a person may not
be deprived of life or liberty since section 1 seems to indicate that a
person may be deprived of these "by due process of law". This is a
very interesting argument and would deserve much greater analysis than
is possible in this paper. Suffice it to say that it is far less harmful to the
future effect of the Bill of Rights than a "frozen concepts" approach.
Before concluding this topic, reference must be made to that part of
the judgment of Mr. Justice Ritchie in which he suggests that decisions
of the United States Supreme Court should not be considered by
Canadian courts because the American Constitution and its Bill of
Rights, on the one hand, and the Canadian Bill of Rights on the other,
"differ so radically in their purpose and content that judgments rendered
in the interpretation of one are of little value in interpreting the
other". 134 Again, Mr. Justice Ritchie gives no explanation for this
statement. He might at least have adopted with approval the decision of
the majority of the Court of Appeal, where Robertson J.A. similarly
35
rejected American precedents and gave reasons for doing so.1
Surely one must expect the highest court in our land to tell us why
decisions of the United States Supreme Court are totally inapplicable. In
interpreting what the Chief Justice has called a "quasi-constitutional"
document clearly intended by Parliament to constitute some sort of a
break with at least that part of our legal tradition which relied for the
protection of our rights and freedoms upon the unwritten law, and
especially when this new instrument includes clauses which closely
resemble those in the American Bill of Rights, can it be said that their
experience is of no value?
Even if the Supreme Court must formally ignore debates of Parliament and its committees in interpreting legislation, it must have been
obvious that some of the clauses in the Canadian Bill of Rights were
similar to those in the American. There are, of course, many points of
at 724, 70 D.L.R. (3d) at 352.
d. at 717-18, 70 D.L.R. (3d) at 345.
See text accompanying note 40, supra.
33Id.
4
13
"3
Cruel and Unusual Treatment or Punishment
1978]
difference. The American Bill of Rights is part of that nation's basic
constitutional document, which is not the case in Canada. There is a
different basis of separation of power and the balance between the
institutions of government in the two states. However, ours is a federal
state like theirs, and unlike the United Kingdom. Further, although
judicial review in Canada was never as extensive as in the United
States, it was certainly always more extensive than in the United
Kingdom. It may very well be that our Supreme Court would hold
legislation contrary to the Canadian Bill of Rights "inoperative" rather
than "void". It may be that our courts will not necessarily adopt the
exclusionary rule developed by the United States Supreme Court for the
enforcement of the Bill of Rights. It would very probably be that our
courts would continue to defer more to Parliamentary opinion than the
United States Supreme Court would to Congressional opinion. However,
these factors do not justify ignoring American decisions for some
guidance as to meanings of expressions which are similarly worded,
especially when in both Bills of Rights the expressions have their source
in earlier English statutes or common law, as does the "cruel and
unusual treatment or punishment" clause.
Of all the phrases used in the Canadian Bill of Rights, is there any
whose content is less synonymous with the analogous American clause
than "freedom of religion"? The First Amendment to the United States
Constitution, which protects "the free exercise" of religion, also prohibits Congress from making any law "respecting an establishment of
religion". With respect to fundamental freedoms, that must be one of
the most important differences between Canada and the United States
because, as Professor Schmeiser has pointed out, 3 6 in Canada we have
historically had established religions, even if we do not have them
today. Yet, the one occasion on which Mr. Justice Ritchie has made
reference to a decision of the United States Supreme Court in supporting his own interpretation of the Canadian Bill of Rights was in
Robertson and Rosetanni, a case with respect to "freedom of religion".
On that occasion he said:
Although there are many differences between the constitution of this country
and that of the United States of America, I would adopt the following
sentences from the dissenting judgment of Frankfurter J. in Board of Education
v. Barnette, as directly applicable to the 'freedom of religion' existing in this
country both before and after the enactment of the CanadianBill of Rights:
The constitutional protection of religious freedom terminated disabilities, it
did not create new privileges. It gave religious equality, not civil immunity.
Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.'"
That was one occasion on which the analogy should have been questioned. Certainly much more so than in terms of the "cruel and unusual
36
1 D. SCHMEISER, CIVIL LIBERTIES IN CANADA 54 (1964).
37
1
Supra note 80, at 656, 41 D.L.R. (2d) at 493.
Ottawa Law Review
[Vol. 10:1
treatment or punishment" clause considered in the Miller and Cockriell
case. As Mr. Justice Ritchie himself acknowledged:
[T]he phrase 'cruel and unusual punishments' is to be found in the English
Bill of Rights of 1688 and the use of the words 'cruel and unusual' in this
context in both the Canadian Bill of Rights
and the United States Constitution
1 38
no doubt owes its origin to that source.
Moreover, the English Bill of Rights had been part of our constitution
since before 1867.
IV.
THE MEANING OF THE CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT
CLAUSE
In determining what is, or should be, the meaning of the "cruel and
unusual treatment or punishment" clause in section 2(b) of the Canadian
Bill of Rights, one is initially faced with choices on two planes. The first
involves choosing one of three possible constructions of the terms used:
conjunctive, disjunctive, or mutually determinative. The second, which
is related to the first, involves choosing among three time references:
the original English draft of 1688, the Canadian adaptation of 1960, or
"the evolving standards of decency that mark the progress of a maturing
39
society".1
It will be argued here that both the conjunctive and disjunctive
constructions involve references to the English meanings of 1688, or to
some other pre-1960 Canadian assessment which may be inapplicable,
and that in any case they can lead to such untenable results that they
cannot be justified as valid continuing guides. What will be suggested is
that the terms used are mutually determinative and require an assessment based upon "the evolving standards of decency that mark the
progress of a maturing society".
It should be stated at the outset that no Canadian court has adopted
the disjunctive construction, namely, that a treatment or punishment
which is "cruel" or "unusual" would be contrary to the Canadian Bill
of Rights. It is, however, an argument that has been put forth on several
occasions, and one which McIntyre J.A. appears to have accepted in his
dissenting opinion in the British Columbia Court of Appeal decision in
Miller and Cockriell.'4 0 On the other hand, the conjunctive interpretation was approved by a majority of the British Columbia Court of
Appeal 141 and of the Supreme Court of Canada 142 in the Miller and
Cockriell case, as well as by the Manitoba Court of Appeal in Dick,
43
Penner and Finnigan.1
The third, or mutually determinative ap"' Supra note 1, at 717, 70 D.L.R. (3d) at 345.
139
Supra note 57, at 101, 78 S. Ct. at 598 (Warren C.J.).
40
1
Supra note 8, at 68, 63 D.L.R. (3d) at 257.
41
1
Id. at 51, 63 D.L.R. (3d) at 242.
142Supra note I, at 717, 70 D.L.R. (3d) at 345.
43
1
Supra note 12, at 177.
1978]
Cruel and Unusual Treatment or Punishment
proach, was specifically approved by Chief Justice Laskin in his dissenting opinion in the Miller and Cockriell case. 44 It appears to have been
favoured by both County Court Judge Borins and by the Ontario Court
of Appeal145 in the Shand case, and was probably applied by Mr. Justice
Heald in the McCann case, even though he expressed his agreement
46
with the definition of McIntyre J.A.1
It is apparent that both the conjunctive and the disjunctive approaches involve a separate determination of the two words, "cruel"
and "unusual". In determining their meanings, one could either use the
ordinary dictionary meaning of each term and assess that in the light of
pre-1960 Canadian experience, or one might try to determine the
understanding of the two terms and the meaning intended to be given to
them by the framers of the English Bill of Rights in 1688 or the drafters
of the American Bill of Rights a century later.
No attempt will be made here to determine historically the meanings
given to the terms in England and in the United States. The reader is
referred to two excellent articles which do this: one is by an American
author, A.F. Granucci,1 47 and the other is by two Canadians, B. Welling
and L.A. Hipfner. 148 What emerges from these articles is that the
original meanings of these terms might have covered punishment that
was "barbarous and torturous", "excessive", "illegal or unlawful", or
possibly, and this is more a development arising out of later American
interpretations, "novel or arbitrary".
In today's terms, it is clear that many of these synonyms are no
longer relevant to our domestic legal system, or at least so unlikely in a
situation where any judicial review is contemplated, that they are no
longer apt. Thus, a punishment which is "illegal" or "unlawful" would
be so found either on application of "the rule of law" principle, or on
some ground of ultra vires, regardless of whether or not it would be
considered cruel or unusual. Similarly, treatment or punishment which
was "barbarous" or amounted to torture would clearly be held to be
cruel and/or unusual. Finally, it is impossible to imagine a court being
concerned about the "novelty" of a punishment unless such a court
concluded that the punishment was cruel and unusual. Therefore, the
only situations of relevance to a construction of section 2(b) of the
Canadian Bill of Rights would be those where punishments are deemed
to be "excessive" or perhaps "arbitrary". It would appear, therefore,
that one is led back to the dictionary meaning of these terms, and that
one can only make sense of the interpretation if the two terms, "cruel"
'44 Supra note 1, at 729, 70 D.L.R. (3d) at 332.
"- Supra note 6.
" Supra note 7, at 601, 68 D.L.R. (3d) at 688.
147Granucci, Nor Cruel and Unusual Punishment itficted: The Original Meaning.
57 CALIF. L. REV. 839 (1969).
148Welling & Hipfner, Cruel and Unusual?: Capital Punishmuent in Canada. 26 U.
ToRONT1o L.J. 55 (1976).
Ottawa Law Review
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and "unusual," are considered as being mutually determinative and
therefore synonymous, or as being read as if the expression used were
"cruel-and-unusual".
As mentioned above, the conjunctive approach seems to have been
adopted by the Courts of Appeal in British Columbia and Manitoba, and
by a majority of the Supreme Court of Canada. In Dick, Penner and
Finnigan, the Manitoba Court of Appeal held that although the punishment of whipping might be "cruel" it was not "unusual" and therefore
did not contravene section 2(b). 149 In the Miller and Cockriell case, the
majority judgments of both the British Columbia Court of Appeal' 50 and
the Supreme Court of Canada 51 held that although the death penalty
might be "cruel" it was not "unusual". In both these cases the
decisions were based upon the fact that the punishments had existed
prior to 1960, and in the Dick, Penner, and Finnigan case it was pointed
out, in addition, that corporal punishment had been used in other
disciplinary situations.- 2 In both cases there must have been some,
though unspoken, assessment of severity in relation to the offence,
because the issue cannot be decided in the abstract. Thus, although one
could agree that the punishment itself is not "unusual" in the ordinary
dictionary meaning of the term, it must be considered in relation to the
offence. Although the death penalty for murder, or punishment by
whipping for rape, may not have been "unusual", certainly one would
have come to the opposite conclusion if either penalty were imposed for
any one of the many summary conviction offences under the Criminal
Code. Such a penalty would be considered both "cruel" and "unusual".
In other words, even in the examples used, the term "unusual" was not
being given merely its dictionary meaning nor was it being applied
disjunctively with the term "cruel". There was an assessment of the
relationship of the severity of the punishment to the nature of the crime,
including the circumstances in which it was committed and the character
of the accused. Obviously then, the courts must have concluded that the
punishment was not "cruel" and "unusual" because it was not "excessive".
The disjunctive approach appears to have been adopted in Canada
only by McIntyre J.A. in the Miller and Cockriell case and Heald J. in
the McCann case. In his judgment McIntyre J.A. seems to have
suggested that he preferred the disjunctive approach, "so that cruel
punishments, however usual in the ordinary sense of the term, would
come within the proscription". 153 The result was, he suggested, that:
[t]he term 'unusual' refers in my view not simply to infrequency of imposition,
because of course any severe punishment, one would hope, would be rarely
'
49
'o
1
15
Supra note
Supra note
Supra note
Supra note
12, at 177.
8, at 55, 63 D.L.R. (3d) at 245.
I, at 717, 70 D.L.R. (3d) at 345.
12, at 177.
"3 Supra note 8, at 68, 63 D.L.R. (3d) at 257.
Cruel and Unusual Treatment or Punishment
1978]
imposed but t.. punishments unusual in the sense that they are not clearly
authorized by law, not known in penal practice or not acceptable by community
standards. 5"
If McIntyre J.A. was really applying a disjunctive interpretationand it is suggested that in reality he was not-then a number of
objections must be raised. The first, and most obvious, is that the disjunctive interpretation requires, in effect, that the phrase "cruel and unusual" be construed as "cruel or unusual". There is no basis for the
interpretational gymnastics needed to construe the word "or", which
introduces an alternative, for the word "and", which is used to join
elements of equal value.
Furthermore, his examples of what might be considered "unusual"
punishment could be dealt with in other ways. Punishments "not clearly
authorized by law" would be illegal or unlawful and would be held
invalid, as indicated earlier. Those "not known in penal practice" could
not possibly be held to contravene section 2(b), unless they were
"cruel" or "excessive". If an alternative model of dispute resolution
were introduced in the Criminal Code whereby convicted persons were to
be sentenced to do some work for their victims or on public projects, it
would be "unusual" punishment, but could it be held to contravene
section 2(b)? Finally, a punishment which is "not acceptable by community standards" must surely be so considered because it is deemed
"cruel" or "excessive" in relation to the nature of the crime and the
circumstances in which it was committed. Therefore, although McIntyre
J.A. did state that he was adopting a disjunctive interpretation, his
explanation of it, his detailed definitions referred to earlier in this paper,
and his application of them to this case, were obviously similar to those
of Laskin C.J.C., who conceived of the terms as mutually determinative.
Similarly, although Mr. Justice Heald in the McCann case quoted
McIntyre J.A. with approval,'5 and thus appeared to adopt the disjunctive interpretation, he proceeded to assess the punishment of solitary
confinement considered in that case under each term separately. This
would not have been necessary under the disjunctive interpretation
because it would have sufficed to decide that the solitary confinement
concerned was either "cruel" or "unusual". Instead, however, it is
clear that he considered each term in the light of the other, and
concluded that the confinement amounted to the imposition of "cruel
and unusual treatment or punishment". He, too, without saying so
explicitly, must have adopted the mutually determinative interpretation.
This approach to interpreting the meaning of the terms was
suggested by Laskin C.J.C. in the Miller and Cockriell case, when he
stated that they were "interacting expressions colouring each other, so
to speak, and hence, to be considered together as a compendious
Id.
154
'
Supra note 7, at 601-02, 68 D.L.R. (3d) at 692.
Ottawa Law Review
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expression of a norm". 156 He went on to say that he considered "this
to be a reasonable appraisal, in line with the duty of the Court not to
whittle down the protections of the CanadianBill of Rights by a narrow
construction of what is a quasi-constitutional document". 157 In other
words, what the Chief Justice proposed is that if the judiciary is to fulfil
its function as Parliament intended by the enactment of the Canadian
Bill of Rights, then it must make an assessment in the light of a
"compendious norm" resulting from a mutual determination of the two
terms.
What is suggested here is that this assessment be made in the light
of some criterion of excessiveness or, as phrased by Arnup J.A. on
behalf of the Ontario Court of Appeal in the Shand decision, on the
basis of the "disproportionality principle".- 8 For this purpose, as
Arnup J.A. suggested, "great assistance can be obtained from the
American precedents, across their rather broad spectrum and to a
lesser extent, from some of the articles in the American periodicals"." 05
In this process, of course, the meaning must be "distilled and enunciated in Canada . . . on a case by case basis".,6 0 Obviously, as both
Arnup J.A. and Laskin C.J.C. emphasized in their judgments, our
tradition of judicial review is not as extensive as that in the United
States and our courts will necessarily give great deference to the opinion
of Parliament. As the Chief Justice suggested in the Miller and Cockriell
case, 161 and has been emphasized by others such as Martland J. in the
Burnshine case,16 2 there can be no question of a burden of proof or
disproof resting on Parliament.
It is obvious then that the onus is upon the one who alleges that a
certain punishment is "cruel and unusual" to prove its "excessiveness"
or "disproportionality". It is obvious, too, that such an assessment
must not be lightly made, and certainly there must be more than a mere
difference of opinion between the judge deciding the case and the
Parliament that enacted the legislation concerned. Therefore, of the
specific tests that have been suggested by those courts in both Canada
and the United States which have given detailed consideration to the
issue, not all would carry weight in the Canadian determination.
Without specific attribution as to the court that suggested it, it
would be useful to consider the various specific tests that have been
suggested:
(1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim?
156Supra note 1, at 729, 70 D.L.R. (3d) at 332.
157Id.
1-Supra note 6, at 79, 70 D.L.R. (3d) at 409.
159
160 Id.
Id. at 80, 70 D.L.R. (3d) at 410.
161
Supra note 1, at 733-34, 70 D.L.R. (3d) at 337.
162 Supra note 28, at 707-08, 44 D.L.R. (3d) at 594.
1978]
Cruel and Unusual Treatment or Punishment
(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?
In the light of the three principles proposed earlier, namely, (1) that
some assessment of severity or disproportionality is required by the
Canadian Bill of Rights; (2) that the onus of proof is on the one alleging
that the punishment is contrary to section 2(b) of the Canadian Bill of
Rights; and, (3) that the judgment of the court must be based on more
than a mere difference of opinion with Parliament as to appropriateness,
several of the above tests are either inadequate or must be applied with
the greatest of caution. Thus, it is very rare indeed that a court could
second-guess Parliament as to whether the penal aim to be achieved is a
legitimate one or whether there are adequate alternatives. It was
because Chief Justice Laskin felt that he could not substitute his own
opinion for that of Parliament on these issues that he declined to hold
the death penalty to be contrary to the "cruel and unusual" clause.
Similarly, he felt unable to accept the assessment of public opinion as
guidance to the "unacceptability" of the death penalty sufficient to
decide that it was cruel and unusual." 3 As far as the matter of
ascertainable standards and arbitrary imposition was concerned, the
mere fact of prosecutorial or judicial discretion was not to be deemed as
an example of "arbitrary" imposition nor an irrational basis of decision
on unascertainable standards. 64 Moreover, with reference to the death
penalty, in Canada it is the judge, not the jury, who determines whether
the death penalty is to be imposed, and its imposition had been
restricted to a very narrow range.1 65
Two of the other tests must be applied with considerable caution.
The first of these is that the judge must be extremely cautious in
deciding that a penalty has "no value in the sense of some social
purpose such as reformation, rehabilitation, deterrence or retribution".
" Supra note I, at 731, 70 D.L.R. (3d) at 334.
Id. at 729-30, 70 D.L.R. (3d) at 332.
6 Id. at 730, 70 D.L.R. (3d) at 333.
164
Ottawa Law Review
[Vol. 10:1
In the Miller and Cockriell case, Chief Justice Laskin expressed his
opinion that he could not decide that there was not perhaps some value
in the death penalty in the sense of the protection it gave police officers
and prison guards, and that he did not have sufficient grounds for
deciding "that there was no social purpose served by the mandatory
death penalties so as to make it offensive to s. 2(b)".1 66 The other test
is that the punishment must be "in accord with public standards of
decency or propriety". This must be viewed in the light of the last two
tests listed. If the punishment is "of such a character as to shock the
general conscience or to be intolerable in fundamental fairness", or is
"unusually severe and hence degrading to human dignity and worth",
then it would not be "in accord with public standards of decency and
propriety". On this point one should, as Judge Borins suggested,
consider section 2(b) "in context with the other provisions of the Bill of
Rights including the preamble". 167 What he meant by this, above all,
was that the preamble to the Bill of Rights affirms, inter alia, the
68
"dignity and worth of the human person".
In sum, then, it becomes clear that the "cruel and unusual" clause
must be read as a "compendious norm" resulting from a mutual
determination of the two terms. This requires the court to assess a
treatment or punishment from the point of view of: its relationship to
the purpose for which it is intended and the offence which it is designed
to punish; its comparison to related offences and their penalties; its
relationship to the nature of the crime and to the activities and character
of the person; and possibly, the probability that it was arbitrarily
imposed without reference to a rational basis and ascertainable standard. If, in the light of these tests, it is so excessive or out of proportion
as to be unusually severe in the sense of degrading to human dignity, so
that it shocks the conscience or is deemed intolerable in fundamental
fairness, then it must be held to be "cruel and unusual" within the
meaning of section 2(b) of the Canadian Bill of Rights. It should, then,
be declared either inoperative, if the treatment or punishment has not
yet been imposed, or unlawful if it already has.
ld. at 735, 70 D.L.R. (3d) at 337.
16"Supra note 6, at 39, 64 D.L.R. (3d) at 637.
"'68 Id. at 41, 64 D.L.R. (3d) at 639.