Reasonable Doubt: Recent Supreme Court of Canada decisions address cruel and unusual punishment

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      Over the past few years, Canada’s highest Court has rendered three judgments addressing cruel and unusual punishment.

      The most recent decision was released this past April (R. v. Nur, 2015 SCC 15), which struck down subsection 95(2)(a) of the Criminal Code for violating s. 12 of the Charter of Rights and Freedoms; that is, the right not to be subjected to any cruel and unusual treatment or punishment.

      The other two judgments dealt with the mandatory minimum four-year jail term for a conviction of manslaughter with a firearm, and the imposition of a nearly insurmountable burden placed on refugees from Hungary to prove they would face persecution if extradited.

      Section 95(1) of the Criminal Code makes it an offence to unlawfully possess a prohibited or restricted firearm (either loaded, or with ammunition readily accessible), and offenders face the punishment set out in subsection 95(2)(a) of: (i) a mandatory three-year minimum jail sentence for a first offence; and (ii) a minimum five-year jail sentence for a second or subsequent offence.

      In Nur, the Supreme Court of Canada weighed in on the issue and found that the mandatory minimum sentences in subsection 95(2)(a) of three- and five-years jail were grossly disproportionate, and “so excessive as to outrage the standards of decency”. In doing so the Court found that the minimum jail sentences would be grossly disproportionate in reasonable hypothetical, yet foreseeable, situations.

      Some examples include the following hypothetical scenarios: (1) A grandfather’s lawful gun collection is inherited but never registered or licensed in the hands of his heirs. The gun collection later comes to light when one of the heirs becomes suicidal and a doctor inquires about guns in the house; and (2) A wealthy businessman buys a ranch and its contents in the United States. The contents include a handgun and ammunition, which are lawfully possessed in the U.S. When the ranch is sold, the contents (including the gun and ammunition) are packed and moved to Canada. As a result of inattention, the businessman never registers or disposes of the handgun. When marital difficulties arise, his wife advises the police of the handgun, and the man is charged even though the wife agreed that the gun had never been used nor had any threats been made.

      Facing a minimum of three years in jail for these scenarios seems outrageous, and the Court agrees. What is more, the hypothetical scenarios reach beyond mere speculation. One similar real-life scenario involved an 87-year-old Korean War veteran. Homecare workers were sent to assist him after a recent hospitalization. One of the workers found a loaded gun, which the veteran assumes was tucked away in a drawer. In fact, he had forgotten all about it. Nonetheless, the police were alerted, and the veteran was charged. He was facing the mandatory three-year minimum jail sentence and was likely to pass away in jail due to his failing health.

      In contrast to the decision regarding s. 95(2)(a) sentences, a 2008 case involved a mandatory minimum four-year jail term for manslaughter with a firearm. This minimum jail term was deemed not to amount to cruel and unusual punishment. The reasonable hypothetical approach was not argued, and the case was decided on its particular facts. In this case, an RCMP officer was convicted of manslaughter for shooting a detainee during an altercation, causing the detainee’s death. The detainee had initiated the altercation, the officer had very little reaction time, and the jury recognized that the officer’s actions were not premeditated. However, the officer was well trained in the use of firearms, had a heightened responsibility toward the detainee in his care, and was in a position of trust. The Court found that the mitigating factors did not reduce the officer’s culpability to such a level that rendered the mandatory minimum jail sentence grossly disproportionate. 

      A much different type of case involved Hungarian refugees who were granted protection because of a fear of persecution based on their Roma ethnic origin. When Hungary issued an international arrest warrant for the refugees based on allegations of fraud, the Canadian Minister of Justice eventually ordered their surrender for extradition. The Supreme Court of Canada found that the Minister had imposed on the refugees the burden of proving they would suffer persecution if extradited, and in doing so, gave insufficient weight to their refugee status and to Canada’s non-refoulement obligations. Non-refoulement is the principle against surrendering a victim of persecution to his or her persecutor, a protection against cruel and unusual punishment.

      The Court held that under immigration laws and conventions, refugees need only prove a risk of persecution when seeking refugee protection, and are not required at the surrender stage to prove that persecution will in fact occur. As a result, the non-refoulement protection continued to exist and the refugees were allowed to remain in Canada.

      The doctrine of Parliamentary Supremacy grants the government the power to pass laws and impose mandatory minimum jail sentences that remove the court’s discretion. The government is also free to grant ministerial discretion with respect to matters such as extradition. However, the Courts preserve their ability to strike down mandatory minimum sentences, and override ministerial discretion, when those actions infringe Charter rights and freedoms.

      Even so, the reasonable hypothetical yet foreseeable approach to determining whether sentencing laws amounts to cruel and unusual punishment is an onerous test to meet. It requires circumstances that render the outcome so grossly disproportionate, and so excessive as to outrage the standards of decency.

      Sherry Baxter practices criminal and civil law on Vancouver Island, as well as provides legal research and litigation services. Reasonable Doubt appears on on Fridays. You can send your questions for the column to its writers at

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.