Methods and Severity: The Two Tracks of Section 12

The story of section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual treatment or punishment, is overwhelmingly told — by judges and scholars alike — as a tale about proportionality. This is an artefact of the prominence of one problem that Canadian courts have famously employed a muscular approach to section 12 to address: the problem of mandatory minimum sentences. Since Nur, the analytical path for evaluating the constitutionality of mandatory minimum sentences has been firmly and clearly set. In Lloyd, the Court summarized the jurisprudence: “The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.” In this article, we argue that this focus on comparison and proportionality as the analytic heart of cruel and unusual treatment and punishment blurs a crucial distinction within section 12, and thereby enervates the courts’ capacity to respond to the range of wrongs that the section should be able to address