The Application of the Cruel and Unusual Punishment Clause under the Canadian Bill of Rights

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Vol 24

Montreal
1978

No. 2

The Application of the Cruel and Unusual Punishment

Clause under the Canadian Bill of Rights

Stan Berger*

Section 2(b) of the Canadian Bill of Rights prohibits those who
are responsible for the execution of federal laws from imposing
cruel or unusual treatment or punishment. More particularly, it
directs the courts to inquire into the quality of those treatments
and punishments which have been imposed or which are authorized
by some federal legislation.

It reads as follows:
2. Every law of Canada shall, unless it is expressly declared by an Act
of the Parliament of Canada that it shall operate notwithstanding the
Canadian Bill of Rights, be so construed and applied as not to abrogate,
abridge or authorize the abrogation, abridgement or infringement of any
of the rights or freedoms herein recognized and declared and in particular
no law of Canada shall be construed or applied so as to…

(b)

impose or authorize the imposition of cruel and unusual treat-
ment or punishment.’

In 1960, when the Canadian Bill of Rights was enacted, penology
had advanced to the point where a judge could hardly be expected
to inquire into the quality of punishment without regard to its
social consequences. However, judges were uncomfortable with
the thought of playing an active role in the legislative process and
sought to restrict the scope of their inquiry to the narrowest possible
field. They did so by giving the words “cruel” and “unusual”

* B.C.L. (McGill). The writer would like to extend his thanks to Professor

Andr6 Morel for his kind support and encouragement.

I Canadian Bill of Rights, S.C. 1960, cA4; R.S.C. 1970, Appendix III.

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their literal meanings. The words were read conjunctively so that
if the impugned punishment could not be characterized as both
“cruel and unusual” it could not run foul of the Canadian Bill
of Rights. Thus in one case,2 it was held that a sentence of whipping
for rape under section 136 of the Criminal Code,3 while possibly
cruel, did not constitute an unusual punishment:

[C]orporal punishment is not unusual in any sense of the word, in some
form or other almost everyone has received it. Discipline in prisons, in
the home and in school is to some extent enforced by corporal punish-
ment. If not the most common it is certainly one of the most common
forms of punishment. 4
In that case the Court neatly avoided any examination of the
quality of the punishment imposed. In others,5 where the Court had
been forced to address the issue squarely, they were quick to
dismiss it as not bearing any significance to the outcome of the
case. In these -latter cases one receives the distinct impression that
the judges were guided by their own instincts rather than by any
well-defined principles of law. This was regrettable because section
2(b) was obviously intended to protect the individual against certain
kinds of punishments and if judges were not willing to set out
which punishments were covered by the statute, little reliance could
be placed on it. The position of those who were punished pursuant
to federal laws remained, for some fifteen years, as uncertain as it
had been before the enactment of the Canadian Bill of Rights.

The last two years have produced three remarkable cases which
focused attention on a section of the Canadian Bill of Rights which
appeared to be destined for oblivion. R. v. Miller and CockriellO
McCann v. The Queen7 and Regina v. Shand” have developed a set
of criteria which will enable future courts to measure treatments
and punishments against the elusive standards set out in section
2(b). The comprehensive manner in which the Courts have dealt

2 Regina v. Dick, Penner & Finnigan (1965) 1 C.C.C. 171.
3 Criminal Code, S.C. 1953-54, s.136; R.S.C. 1970, c.C-34, s.144; since amended
to delete punishment by whipping, Criminal Law Amendment Act, 1972, S.C.
1972, c.13, s.70.
4 Supra, note 2, 177.
5Re Laporte and the Queen (1972) 8 C.C.C. (2d) 343; R. v. Hatchwell (1974)
14 C,C.C. (2d) 550 (B.C.CA.); reversed on other grounds (1975) 54 D.L.R. (3d)
419, 21 C.C.C. (2d) 201, 4 W.W.R. 68 (S.C.C.).

0 (1975) 63 D.L.R. (3d) 193, 24 C.C.C. (2d) 401 (B.C.CA.); (1976) 70 D.L.R. (3d)

324 (S.C.C.).

CA.).

7 (1975) 68 D.L.R. (3d) 661, 29 C.C.C. (2d) 337 (F.C.T.D.).
8 (1976) 64 D.L.R. (3d) 626 (Ont. County Ct); (1976) 70 D.L.R. (3d) 395 (Ont.

1978]

CRUEL AND UNUSUAL PUNISHMENT CLAUSE

with section 2(b) in these cases renders previous judicial statements
emanating from a Canadian court hopelessly inadequate. On a
broader scale, these judgments reflect the prevailing views of
judges from the lowest to the highest court in Canada on the
status of the Canadian Bill of Rights.

This study is an attempt to place these three recent cases in
their proper perspective. It will begin with a brief historical survey
of the “cruel and unusual punishment” clause; its origination in
England and its development in the United States. This will be
followed by a critical evaluation of the three Canadian cases –
Miller and Cockriell, McCann and Shand. An attempt will be made
to draw out of these cases a set of practical guides for determining
whether a particular punishment or treatment is cruel and unusual.
Attention will also be given to the status attributed to the Canadian
Bill of Rights since section 2(b) can only serve a useful purpose
if judges are prepared to regard the Act which sustains it with
special significance. The study will conclude with some general
observations on the efficacy of remedies -available to the victim
of cruel and unusual punishment. No matter how highly they are
praised, rights and freedoms are only truly respected when there
is recourse against those who would disregard them.
I. The Origin and Development of Section 2(b) of the Canadian

Bill of Rights

A. Original Meaning

The first reference to cruel and unusual punishment occurs in

the English Bill of Rights of 1689:

Whereas the late King James the Second by the assistance of diverse and
evill councillors, judges and ministers imployed by him did endeavour to
subvert and extirpate the Protestant religion and the lawes and liberties
of this Kingdome … and whereas excessive baile hath beene required …
and excessive fines have beene imposed. And illegal and cruel punishments
inflicted. … And thereupon the said Lords … doe in the first place …
for the vindicating and asserting their ancient rights and liberties declare
… [t]hat excessive baile ought not to be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted
There is some difference of opinion as to which punishments
were meant to be prohibited. It has been suggested that the “cruel
and unusual punishment” clause was meant to prohibit barbarous
methods of punishment.’ The memory of such grotesque scenes
as were enacted during the treason trials of 1685 (The Bloody

9 Bill of Rights, 1689, 1 Wm & Mar. (2d Sess.), c.2 (U.K.) (emphasis added).
10 Macaulay, History of England (1964), vol.II, 371.

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Assize) could not have been far from the minds of the drafters of
the clause. Yet others, such as Anthony Granucci, have argued that
the clause was prompted by the judgment in the trial of Titus Oates
and prohibited not barbarous methods of punishment but penalties
which were excessive.1 Both views have been rejected in a recent
Canadian article dealing with the subject. 2 The learned authors
argue that there is not enough evidence to connect the clause with
either of these events and in any case there is no distinction to be
made between them, since on both occasions the punishments im-
posed were barbarous and excessive. They conclude that the clause
was no more than an “objection to the imposition of punishments
which were unauthorized by statute and outside the jurisdiction of
the sentencing court”. 3

While Granucci’s reasons for denying any causal connection
between The Bloody Assize and the “cruel and unusual punishment”
clause *appear less than convincing, 4 there is sufficient evidence
to support his conclusion that the- clause was a reiteration of the
English policy against disproportionate penalties. The Oates affair
still provides the only recorded contemporary uses of the terms
“cruel and unusual” and “cruel and illegal”. In response to Oates’
petition for a release from judgment, the dissenting minority in
the House of Lords considered his sentence to be contrary to the
newly passed Bill of Rights.5 The House of Commons agreed and
condemned the punishment as “cruel and illegal”.’

The distinction made between Oates’ punishment and that ad-
ministered in The Bloody Assize also appears to be justified. Of
the punishments inflicted upon Oates, only the whippings would
qualify as barbarous. Granucci’s view of the whippings derives
from the diary of John Evelyn 1’7 which suggests that while the
whippings were severe they did not amount to torture. Welling
and Hipfner, for their part, rely on Macaulay’s account 8 which
is far from objective. As between the two, a contemporary account

ing (1969) 57 Calif.L.Rev. 839.

11 Granucci, “Nor cruel and unusual punishment inflicted”: the original mean-
12 Welling & Hipfner, Cruel and Unusual? Capital Punishment in Canada

(1976) 26 U.of T.L.J. 55.

Is Ibid., 59.
14 Ibid., 58.
15Howell (ed.) Cobbet’s Complete Collection of State Triats (1816), vol.10,

column 1325.

16Gray, Debates in the House of Commons From the Year 1667 to the

Year 1624 (1763), vol.9, 287.

17 De Beer (ed.), The Diary of John Evelyn (1955).
1′ Supra, note 10, 370-1.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

is to be preferred to that of a nineteenth century Whig historian
whose politics set the tone for his writing.

Granucci’s conclusion receives support in the text of the legis-
lative enactment itself. 9 The tenor of the sections cited above
shows that there was a desire to break away from the excesses of
the past. It
is significant that in seventeenth century England
it was common to use the word “cruel” as a synonym for the words
“severe” and “excessive”.20

B. Judicial Developments

English courts treated the clause as a statement of principle

and not as, a check on the English Parliament.

American courts were at first cautious in their interpretation
of the clause. Thus the infliction of death was not considered
to be “cruel and unusual” per se.2′ However, in a dissenting United
States Supreme Court opinion in 1892, Field J. first advanced the
proposition that excessive punishment violated constitutional li-
mitations:

The inhibition [of the Eighth Amendment] is directed, not only against
punishments of the character mentioned, [torture] but against all punish-
ments which by their excessive length or severity are greatly disproportion-
ed to the offences charged.22
Had this opinion prevailed, a prison sentence of fifty-four
years for engaging in numerous illegal liquor sales would have
been struck down as cruel and unusual. While the sentence could
not be categorized as torture amounting to outright barbarity,
it was unreasonable and through the test of disproportionality,.2
Field J. was able to underline this point.

The United States Supreme Court first invalidated a penalty
in 1910. In Weems v. United States 4 a public official in the
Philippines had been convicted of falsifying an official document
to conceal the wrongful disposition of small sums of money. He
was fined and sentenced to fifteen years of cadena temporal, an
Hispanic punishment consisting of hard and painful labour, constant

11 Supra, p.163.
20 See the quotation from Swift in Oxford English Dictionary (1933), vol.2,
1216; and Blackstone’s discussion of punishments of unreasonable severity in
Commentaries on the Laws of England 18th ed. (1778), vol.4, 16-17.

Kemmler 136 U.S. 436 (1890) (death by electrocution).

2 1 Wilkerson v. Utah 99 U.S. 130
22 0’Neil v. Vermont 144 U.S. 323, 339-40 (1891).
2 For a more detailed discussion concerning this test, see text infra, p.178.
24217 U.S. 349 (1909).

(1878)

(death by firing squad); In Re

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enchainment and a number of accessory penalties, including sub-
jection to continual surveillance for life and civil interdiction
(deprivation of parental authority and of the right to dispose of
property inter vivos). In a 4-2 decision the Court held that the
sentence was excessive in relation to the crime committed. Taking
a comparative approach, McKenna J. said that it was a “precept
of justice that punishment for crime should be graduated and
proportional to [the] offence”.25 Cadena temporal was juxtaposed
against lesser penalties prescribed for a variety of more serious
federal crimes, including certain degrees of homicide and punish-
ments for similar crimes under American and Philippine law. In
response to the suggestion that the framers intended to prohibit
only barbarous methods of punishment, it was said that

it must have come to them that there could be exercises of cruelty by
laws other than those which inflicted bodily pain or mutilation… [A] prin-
ciple to be vital must be capable of wider application than the mischief
which gave it birth.26
Six years later the Weems’ extension of the Eighth Amendmentoa
came under attack in Badders v. United States.’ Mr Justice Holmes,
citing a pre-Weems’ dictum, said, “[u]ndue leniency in one case does
not transform a reasonable punishment
in another case to a
cruel one”.28

It was not until 1958 in the case of Trop v. Dulles” that the
Supreme Court had occasion to strike down another penalty as
unconstitutional. This time the penalty was loss of citizenship for
desertion in wartime. Warren C.J. stated that the basic concept
underlying the Eighth Amendment was “nothing less than the
dignity of man”, and that “[t]he Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society”

These were the significant developments prior to 1972. In that
year, the United States Supreme Court handed down its celebrated
decision in Furman v. Georgia1 Unfortunately the decision beclouds

25 Ibid., 367.
2
6 Ibid., 372-73.
26a U.S. Const.amend. VIII. The Eighth Amendment reproduces the words of
the English Bill of Rights almost verbatim: “Excessive bail shall not be re-
quired, nor excessive fines imposed, nor cruel and unusual punishment in-
flicted.”

27240 U.S. 391 (1916).
28Howard v. Fleming 191 U.S. 126, 136 (1903).
29 356 U.S. 86 (1957).
30 Ibid., 100-101.
31408 U.S. 238 (1971).

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

more than it clarifies. Each justice wrote a separate opinion and
it is difficult to find any agreement among the majority as to
the nature of the question before them or the type of tests appro-
priately employed in Eighth Amendment litigation. Nevertheless,
the decision provided the most thorough analysis of the Eighth
Amendment to that date, and was given considerable attention
by the Canadian Courts in Miller and Cockriell,32 McCann3 and
Shand.34

The Furman case consolidated three writs of certiorari reviewing
death sentences imposed on three men (two had been convicted
of rape and one of murder). These men had been convicted under
statutes which gave the jury the option of imposing a sentence of
death or life imprisonment upon a finding of guilt. In a 5-4
decision, the Supreme Court ruled that these statutes violated
the prohibition against cruel and unusual punishment; the jury
option could only be exercised arbitrarily and this was incompatible
with the rights protected under the Eighth Amendment. Brennan J.
spoke for the majority:

When the punishment of death is inflicted in a trivial number of cases in
which it is legally available the conclusion is virtually inescapable that it
is being inflicted arbitrarily. Indeed it smacks of little more than a lottery
system 3 6
This theme was not new; the majority in Furman, like the
Convention Parliament of 1688, was concerned with the abuses
that result when enormous power is placed in the hands of a
select few without any guidelines for its exercise.

There was further agreement among the majority on another
point. The interpretation of “cruel” punishment advanced by White
3., like the more elaborate tests of cruel and unusual punishment
of Brennan and Marshall JJ., emphasized that there must be “justi-
fication” for the punishment imposed. According to White I., while
execution could be justified in terms of deterrence and retribution,
those ends were not being served because of the infrequency of
imposition between 1967 and 1972. Brennan and Marshall JJ., on
the other hand, accepted as their starting premise that capital
punishment per se was “excessive” because it served no legitimate
social purpose any more effectively than a less severe punishment. 37

32 Supra, note 6.
33 Supra, note 7.
34 Supra, note 8.
35 White, Marshall, Douglas, Stewart & Brennan JJ. constituted the majority.
3O Supra, note 31, 293.
371bid., 312-13 per White J., 300 per Brennan J., 354-59 per Marshall J.

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Although it would not become more effective if it were used more
often, the fact that it had been used sporadically indicated that
there were grave societal doubts as to its efficacy.

It is to be noted that the word “excessive” was used here in
a completely different context than it had been in Weems.38
The logical extension of Weems would be that since murder and
rape are among the most severe offences, they demand the most
severe punishment. Indeed, by examining punishments for such
crimes in other jurisdictions, it would become apparent that capital
punishment was not an excessive penalty for either offence. The
“necessity test” adopted in Furman effectively overcomes the “pro-
portionality test” used in Weems by establishing an inherent re-
lationship between the punishment and the crime instead of a
relative standard which measures the punishment in comparison
with that imposed for similar and less serious crimes within and
outside the United States.

While Furman illustrates the possibility of using the necessity
test to invalidate a punishment which is found to be proportionate
according to the Weems test, it may also be used to validate a
punishment which is found to be disproportionate. Since it is
possible that the punishments imposed for other crimes might be
too lenient,39 an independent assessment of the punishment pre.
scribed for the crime in question might result in a finding favorable
to its continuance. In spite of these differences, the two tests are
not always in conflict. As will be illustrated later in this article, 0
the Weems test is useful in determining whether a particular
punishment is appropriate with respect to retribution.

To decide whether capital punishment was justified, Brennan
and Marshall JJ. looked at the three possible social purposes which
might be served –
deterrence, protection of society from the
criminal and retribution. Brennan J. argued that most capital crimes
could not be deterred by the threat of punishment because those
who committed such crimes did not act rationally 4 For punishment
to have deterrent effect the offender must be in a state of mind
to weigh the consequences of his actions. Marshall J. took a less
extreme stand; while recognizing that the death penalty might
have some deterrent effect, he concluded that it was unnecessary

p.166 .

3 8 Supra, note 24.
39 See Holmes J.’s discussion of Weems in Badders, supra, note 27, see infra,
4
1 Infra, p.178.
41 Supra, note 31, 301.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

because imprisonment would be just as effective? 2 Protection of
society from the criminal was not considered a legitimate social
purpose in view of the fact that convicted murderers generally
behaved themselves while in prison and had low rates of recidivism
upon their ultimate release. Lastly, both judges rejected retribution
as a justification for capital punishment: “The history of the
Eighth Amendment supports only the conclusion that retribution
for its own sake is improper”.”

The effect of Furman was -recently revealed in a series of United
States Supreme Court decisions. 44 The majority of the Court re-
cognized that a mandatory death penalty, other than at the arbitrary
option of the jury, will not run counter to the prohibition against
cruel and unusual punishment as long as it is limited in its applica-
tion to a narrowly defined offence 5 Thus, due consideration would
be given to such matters as the character and record of the
offender and the circumstances surrounding the commission of
the offence. This would allow the advantages of the jury option
to be retained while eliminating its major weakness.

II. Three Case Studies

A. Capital Punishment: Regina v. Miller and Cockriell”

Until the enactment of the Criminal Law Amendment Act (No. 2,
1976), 47 capital punishment was authorized for certain crimes in
Canada. Unlike the mode of imposition authorized by the statutes
in Furman, juries in Canada were not given any discretion to choose
between the death penalty and life imprisonment since the man-
datory sentence for a capital crime was death.48

The defendants in Miller and Cockriell were convicted of murder
punishable by death for the fatal shooting of a police officer. One

42 Ibid., 347.
4Ibid., 345, per Marshall S.
4Gregg v. Georgia 44 U.S.L.W. 5230 (1976); Woodson & Waxton v. North
Carolina U.S.L.W. 5267 (1976); Jurek v. Texas 44 U.S.L.W. 5262 (1976); Roberts
v. Louisiana 44 U.S.L.W. 5281 (1976).

45 Since both Brennan and Marshall J. are of the opinion that capital
punishment cannot be justified no matter how it is imposed, they have not
shared the majority view. See, e.g., Jurek v. Texas, supra, note 44.

46 Supra, note 6.
47 S.C. 1974-75-76, c.105.
48R.S.C. 1970, c.C-34, ss.47(1), 75(2); R.S.C. 1970, c.C-34, s.214, as am. by
s.214(2), S.C. 1973-74, c.38, s.2; R.S.C. 1970, c.C-34, s.218, as am. by s.218(2),
S.C. 1973-74, c.38, s.3.

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of the primary grounds of appeal was that the death penalty was
cruel and unusual punishment, contrary to the Canadian Bill of
Rights. Although capital punishment had been abolished by the
time the case came before the Supreme Court of Canada, the point
raised was not a moot one. Section 25(2) of the Criminal Law
Amendment Act 9 provided that if a person under sentence of death
at the time the Act came into force had appealed his conviction
and the appeal had been dismissed after the Act had taken effect,
his sentence would become one of life imprisonment and he would
only be eligible for parole after twenty-five years. If section 2(b)
of the Ca~iadian Bill of Rights rendered that portion of sections
214 and 218 of the Criminal Code which referred to the death
penalty inoperative, then the appellants could not have been found
guilty of “murder punishable by death” and section 25(2) could
not apply. Thus the appellants’ right to parole during the first
twenty-five years of their sentence depended on whether the death
penalty was cruel and unusual punishment.

Only one aspect of the majority judgment in the British Columbia
Court of Appeal deserves attention. Reading the words “cruel and
unusual” conjunctively, the majority reasoned that if Parliament
thought the sentence of death “unusual”, then in 1973 when it
amended the Criminal Code it would have provided that for all
crimes where the prescribed sentence was death, the sientence would
continue to operate notwithstanding the Canadian Bill of Rights.10
The irony is that the absence of a non-obstante clause was being
used by the Court to render operative a punishment which might
otherwise violate section 2(b) when the opening words of section 2
state this to be the very purpose of including such a clause. To the
Court, the insertion of the non-obstante clause is unnecessary with
respect to section 2(b), even though no words in section 2 indicate
that it should have such a limited effect.

In his dissenting judgment, McIntyre J.A. adopted the approach
used by Brennan J. in the Furman case by reading the words “cruel”
and “unusual” disjunctively2oa The basis for this view is that the
word “unusual” was inadvertently used in the English Bill of
an argument which may be reasonably inferred from the
Rights –
way in which the word “unusual” was introduced into that Act.”

49 S.C. 1974-75-76, c.105.
50 R. v. Miller & Cockriell (1975) 63 D.L.R. (3d) 193, 246 (B.C.C.A.).
60a E.g., “cruel punishment however usual in the ordinary sense of the term

could come within the proscription”, ibid., 257.

51 Supra, p.163-64.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

The Act explains that the prohibitions contained therein were
motivated by the “illegal” and cruel punishments inflicted during
the reign of James II. Then, for some inexplicable reason, the word
“unusual” is substituted for the word “illegal”. McIntyre J.A. there-
fore assumed that “unusual” referred to punishments not authorized
by law and devoted his attention to the word “cruel”. Only three
members of the Supreme Court were prepared to take this ap-
proach5

2

McIntyre J.A. suggested a five-fold test for determining whether
capital punishment violated section 2(b) of the Canadian Bill of
Rights.53 The test may, however, be applied to all treatments and
punishments authorized or imposed by federal laws. The preliminary
question is whether capital punishment serves any legitimate social
purpose (hereinafter referred to as the “social purpose test”).
If it does not, it is cruel and unusual but even if it does, it will be
considered cruel and unusual if it does not accord with public
standards of decency (the “public decency test”); if it cannot be
applied upon a rational basis in accordance with ascertained or
ascertainable standards (the “arbitrariness test”); if it is unne-
cessary because of the existence of adequate alternatives (the
“necessity test”); and if it is excessive and out of proportion to
the crimes it seeks to restrain (the “disproportionality test”) .

i) The public decency test

The Canadian Bill of Rights begins by declaring that “in Canada
there have existed and shall continue to exist the following human
rights and fundamental freedoms”.5 5 These words express an in-
tention to set out rights and freedoms which do not vary with
time. This intention cannot be supported by the public decency
test put forth by McIntyre J.A., who sought to show that capital
punishment no longer commanded that “degree of unanimity re-
quired to give it general social acceptance”.P The logical inference
to be drawn from his statement is that if capital punishment was
accepted by the majority of the Canadian population it would
not be cruel and unusual. It is easy to pay lip-service to the notion
that punishment must conform to public standards of decency
and propriety when there are, to borrow the words of Warren C.J.

52 R. v. Miller & Cockriell (1976) 70 D.L.R. (3d) 324, 332 (S.C.C.) (Laskin C.J.C.,

Spence and Dickson JJ., concurring).

53 Supra, note 50, 260-73.
54Ibid.
55 S.C. 1960, cA4, s.1; R.S.C. 1970, App. III.
5 6 Supra, note 50, 265.

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in Trop v. Dulles, “evolving standards of decency that mark the
progress of a maturing society”. 57 However, what weight is to be
given to public opinion when the public is overcome by fear,
hysteria, prejudice or ignorance? The Nuremberg Trials have taught
us that human rights must not be made dependent on prevailing
attitudes, no matter how civilized the people in question appear
to be. A variable standard, such as public decency, cannot guide
a people who have been led astray. MoreGver, even if the public
were in a position to judge which punishments are acceptable,
how could the public view be ascertained. While Parliament theore-
tically should reflect the sentiments of the people, the mere fact
that it has enacted the Canadian Bill of Rights illustrates that
it is not infallible. Laskin C.J. ruled out the possibility of resorting
to polls when he said that

… the contention of unacceptability to a large segment of the Canadian
population appears to me to be asking this Court to define and apply s.2b
by a statistical measure of approval or disapproval of the death penalty.
This is not what s.2b prescribes.5 s
The Chief Justice suggested in an earlier part of his judgment
that history might be invoked to resolve the question of whether
a punishment was so excessive as to outrage standards of decency!”
This does not mean that the right to be free of cruel and unusual
punishment would be tied to laws in existence prior to 1960;
it is only the rights and freedoms recognized in the Canadian Bill
of Rights which are declared invariable. The laws of Canada in
force at the time of its enactment may violate these invariable
rights and freedoms because the latter do not derive their meaning
from any particular law in force in Canada in 1960. They have
a broader base, calling into account laws and customs which have
evolved over the course of centuries in England and Canada.
Nevertheless, while the Chief Justice’s suggestion does relieve some
of the danger which accompanies the public decency test, it merely
begs the question. The judge must be supplied with the means of
determining which laws and customs in existence prior to, and
at the time of the enactment of the Canadian Bill of Rights, best
reflect the public’s sense of decency. Calling history into account
creates stability in the administration of the law but also increases
the possibility that section 2(b) will become meaningless as each
judge relies on his own interpretation of history. Because of the
enormous shadow of law and custom, a judge must be provided

57 Supra, note 29, 100-101.
58 Supra, note 52, 334.
59 Ibid., 331.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

with a guiding light. He should not be permitted to roam free in
such an expansive area.

The test of public decency in the TropO case also fails

to
provide ascertainable standards. If punishment is to be acceptable
if it accords with the evolving standards of decency in a society
enlightened by humane justice, the judge will be left to decide
what such a society would consider to be decent. Therefore, one
must look elsewhere to find manageable criteria for determining
whether treatment or punishment is cruel and unusual.

ii) The arbitrariness test

There are difficulties in applying the arbitrariness test to the
enforcement of capital punishment. As indicated above, unlike
the United States, Canada never recognized the jury option as a
mode of imposing capital punishment. Only the Governor General
in Council could have been guilty of arbitrarily inflicting the death
sentence through the exercise of executive clemency 0 As McIntyre
J.A. said:

I intend no criticism of those who have faced the awesome responsibility
for the decision between life and death when clemency was considered.
However, the best and most high-principled of men 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. 62
is not sufficient to say that the Governor General in Council
It
cannot commute the death penalty to life imprisonment without
acting arbitrarily. If, as in Furman, arbitrariness in the application
of a penalty renders the law which- authorizes
it inoperative, a
murderer convicted in Canada would be in a far worse position
than he would have been had the law remained
in effect. For
the law which authorized the arbitrary application of the penalty
thereby becoming inoperative, is not section 218(1) which im-
posed the death penalty, but rather section 684(1) which provided
for executive clemency. All that would remain between a convicted
murderer and death would be the Royal Prerogative.

In view of the dcecision in Smythe v. The Queen, 3 it is question-
able whether section 2(b) could have any curative effect on the
exercise of the Royal Prerogative. If the discretionary power of the

6o Supra, note 29.
01 See s.684(1) of the Criminal Code, R.S.C., 1970, c.C-34, repealed by 1974-75-

76, c.C-105, s.23.

62 Supra, note 50, 270.
63 [1971] S.C.R. 680.

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Attorney-General to choose the mode of prosecution was beyond
reproach because it formed part of the British and Canadian concep-
tion of equality before the law, why would the Supreme Court be any
more willing to review an exercise of discretion under the Royal
Prerogative?”

The arbitrariness test might have been used in a different
sense. While applying the test to executive clemency it could have
been used to bring into question the operability of section 218(1).
By sentencing the offender to death or life imprisonment at the
discretion of the Cabinet, the Court is “authorizing” the subsequent
ideas and beliefs”. 5
application of “individual tests, individual
It is therefore authorizing the Cabinet to apply a severe punishment
in a randomly selective manner. Section 2(b) can be interpreted
as prohibiting a court “from relinquishing its responsibility to
guard against the authorization or imposition of executions
in
circumstances which make the punishment cruel and unusual”.0
The court has the duty to preclude this possibility by declaring
the capital punishment sections of the Criminal Code inoperative.
This “authorization loophole” was not given any attention in
Miller and Cockriell. The Supreme Court of Canada was not prepared
to accept that the Governor in Council acted arbitrarily in commut-
ing death sentences. As an American commentator on the Furman
case said:

It seems to me as inherently plausible that … governors of states conduct
themselves with deliberation and caution so as to err on the side of mercy,
reserving their ultimate punishment for those whose transgressions are
most clearly established and seem to them most revolting. This explana-
tion, if it is accurate (and no one knows whether it is) is not arbitrariness
but the antithesis of arbitrariness.6 7
The arbitrariness test is far from useless. If it serves no other
purpose at least it accentuates the underlying policy of section 2(b)
–
punishment is only legitimate when it can be imposed on a
rational basis according to manageable standards.

iii) The social purpose test and the necessity test

These tests go hand in hand. Evidence which is put forth to
establish that a punishment has a legitimate social purpose will

64The Smythe decision would not haveapplied to the exercise of executive
clemency discussed above, because this commuting power by the Governor in
Council is merely a creature of statute and is not a part of our British heritage.

6 Supra, note 50, 270, per McIntyre JA.
66 Supra, note 12, 82.
6 Polsby, The Death of Capital Punishment? Furman v. Georgia [1972J

Supreme Ct Rev. 1, 20.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

also be used to show that this purpose (or purposes) could not
be served by any less severe punishment. While both tests allow
the court to view the particular treatment or punishment in a
social context rather than in a vacuum, both tests present similar
practical difficulties.

The first problem is an evidentiary one; must the defence prove
that the punishment in question serves no legitimate social purpose,
such as deterrence for example, or alternatively must it prove that
even if the punishment does serve some social purpose, this purpose
could be achieved by a less severe punishment. Or does the Crown
bear the burden of proving that the penological aims of the
punishment in question could not be realized through a lesser
punishment? Because both tests often require a judge to weigh
contradictory evidence, the outcome of the trial will largely depend
on who must assume the burden of proof.

McIntyre l.A. assumed that the burden of proof fell on the
Crown, and not surprisingly, he concluded that capital punishment
did not serve any legitimate social purpose nor could it be justified
if it did. Addressing the initial question of social purpose, he con-
centrated on the “primary proposition used to justify [its] im-
deterrence.6 8 Like Brennan J. in Furman, he concluded
position” –
that capital punishment “fails to acquire the justification of deterrent
value”.6 9 Reaching this conclusion on the basis of an “inference”
drawn from the statistical data before him,7 he conceded a little
later in his reasoning7′ that “differing interpretations” may be
placed on statistics.1 2 Moving to the alternative test of necessity,
McIntyre J.A. again concluded that the Crown had not discharged
the burden of proofi” It thus followed that imprisonment could
adequately deter the criminal and protect society.

68 Supra, note 50, 260.
69 Ibid., 261.
70 Ibid.
71 Ibid., 266.
72 Indeed, in one study, a positive correlation was made between crime rates
for crimes including murder and rape, and the severity ,of the potential punish-
ment. See Ehrlich, The Deterrent Effect of Crimiial Law Enforcement (1972)
I J. Legal Studies 259. Although the study did not directly deal with capital
punishment, as Professor Wheeler has said, “it would be illogical to conclude
that even though capital punishment is more severe a punishment than
imprisonment his [Ehrlich’s] conclusions are inapplicable to capital pu-
nishment”. See Wheeler, Toward a Theory of Limited Punishment: The
Eighth Amendment After Furman v. Georgia (1972) 25 Stan.L.Rev. 62, 77n.
While it is not known whether McIntyre J.A. referred to this study, he un-
doubtedly referred to similar ones.

73 Supra, note 50, 267-68.

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In the Supreme Court, Chief Justice Laskin could not agree
with Mr Justice McIntyre that there was any burden upon the
state to show that capital punishment was a deterrent. 74 He accord-
ingly went on to find that it did deter others from murdering police
officers. However, the Chief Justice’s reluctance to accept a reversal
of the burden of proof where there was a significant encroachment
upon the subject’s liberty was unjustified. In the United States, the
state may prevail in such circumstances only “by showing a subor-
dinating interest which is compelling” 5 There is no reason why the
same should not hold true in Canada.

Laskin C.J.’s approach reflects a stubborn adherence to Dicey’s
principle of parliamentary sovereignty; 7 an existing Parliament
may not be limited by its predecessorsy 7 Since the Canadian Bill of
Rights cannot bind Parliament according to this view, it is free to
do what it pleases with the subject’s liberty, provided that the
legislation is, in pith and substance, within its legislative com-
petenceY1 If Parliament is sovereign in this sense then it need not
justify any deprivation of liberty; be it large or small, there is no
point in imposing the burden of proof upon those who purport to
enforce Parliament’s laws.

Dicey’s principle of parliamentary sovereignty has been the sub-
ject of criticism over the years. In the words of Sir Ivor Jennings,
legal sovereignty means nothing more than that “the courts will
always recognize as law the rules which Parliament makes by
legislation, that is, rules made in the customary manner and ex-
pressed in the customary form”. 79 The Canadian Bill of Rights

(1961) 39-40.

74 Supra, note 52, 336-37.
T5 Griswold v. Conn. 381 U.S. 497 (1965).
74 Dicey, Introduction to the Study of the Law of the Constitution 10th ed.
77 Ibid., 64-68.
78 E.g., Union Colliery of British Columbia Ltd v. Bryden [1899] A.C. 580
(P.C.); Cunningham v. Tomey Homma [1903] A.C. 151 (P.C.); Morgentaler v.
The Queen (1975) 53 D.L.R. (3d) 161, 173 per Laskin J.
79 Jennings, The Law and the Constitution 5th ed. (1960), 149. This position
is supported by the following writers: Dixon, The Law and the Constitution
(1935) 51 L.Q.R. 590, 603; Cowan, Parliamentary Sovereignty and the En-
trenched Sections of the South African Act (1951), 16; Friedmann, Trethowan’s
Case, Parliamentary Sovereignty and the Limits of Legal Change (1950) 24
A.L.J. 103. Jenning’s view has been given judicial expression in The Bribery
Commissioner v. Ranasinghe [1965] A.C. 172, 197-98, where the Privy Council
decided that a legislature, whether sovereign or not, could not ignore the
conditions (manner and form requirements) of law-making imposed by the
-instrument which itself regulates the power of the legislature to make laws.
For the application of this principle in Quebec, see Brun & Tremblay, Droit

19781

CRUEL AND UNUSUAL PUNISHMENT CLAUSE

presents the manner and form requirements for passing valid acts
of Parliament. If Parliament chooses to ignore the prescribed man-
ner and form, its legislative actions must give way to the Canadian
Bill of Rights in the event of conflict.Y0 In this sense the Canadian
Bill of Rights, like its counterpart in the United States,80a stands
above the legislative arm of government. Once it is recognized that
Parliament is not free to interfere with the subject’s liberties it is
not asking too much to impose upon the Crown the burden of
justifying the more serious encroachments.

If the Crown were to assume the burden of proof, it would not
be that onerous, for retribution can often be invoked to justify
punishment even though McIntyre J.A. chose to ignore this concept
completely.”‘ Retribution must be a legitimate social purpose of
capital punishment since it would appear from McIntyre J.A.’s
reasoning that the purpose is legitimized by the efficacy of the
punishment.82 It cannot be denied that capital punishment serves
to vindicate the legal order better than any other penalty could.
Laskin C.J. implied as much:

It is not difficult to appreciate that the kind of revulsion that an orderly
society may feel against murder, and especially murder of policemen
and prison guards, may express itself in a correspondingly severe sanction
that would be deemed inappropriate for less grievous offences. 83
However, without guidelines for determining the amount of
retribution deserved, the severity of the punishment will ultimately
depend upon the sentiments of each judge. Moreover, if the guidelines
adopted involve nothing more than an appreciation of social attitudes
in the jurisdiction of the judge who tries the case, the punishment’s
continued operation will depend on the caprice of a potentially mis-
guided people.84 It is at this point that the disproportionality test
becomes significant.

publique fondamental (1972), 245 et seq., 254 et seq. In Canada, generally, see
Tarnopolsky, The Canadian Bill of Rights 2d rev.ed. (1975).

80 Regina v. Drybones [1970] S.C.R. 282, (1969) 9 D.L.R. (3d) 473.
80a U.S. Const. amend. VIII.
SlAs is evidenced by the remarks of Marshall J. in Furman, supra, note 31,
retribution is no longer favourably regarded by some judges as a legitimate
social purpose.

82 When McIntyre J.A. considered whether deterrence was a legitimate social
purpose, he looked to the effects of capital punishment. Thus if the prosecution
discharged the burden of proving that capital punishment had a deterrent
effect, deterrence would have been a legitimate social purpose, supra, note
50, 260.

83Supra, note 52, 337.
84 From this perspective, the social purpose test shares all the dangers and
uncertainty of the public decency test. Supra, p.171-73. Nevertheless the former

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iv) The disproportionality test

Had McIntyre J.A. considered retribution to be a legitimate social
purpose he would have employed the WeeMs14a formulation of the
disproportionality test to complement the test of necessity. The
murder of a police officer would be compared to other serious
crimes in which the penalty was less severe than death. If a lesser
penalty could satisfy the community’s sense of outrage at a crime
producing relatively the same results, then the penalty prescribed
for the offence in the case in question would be disproportionate
and unnecessary as a retributive device. By comparing the penalties
imposed in Canada with those imposed in other jurisdictions, the
possibility of error might ‘be further reduced. To keep variables to
a minimum it would be advisable’to rely on jurisdictions with similar
cultural and social conditions.

If Mr Justice McIntyre’s tests were adopted by the Supreme
Court and the burden of proving that capital punishment served
some legitimate purpose which could not be adequately served by a
lesser punishment was shifted onto the Crown, it is submitted that
the Court would still come to the conclusion that capital punishment
was not cruel and unusual. While the Crown might be unable to
satisfy the Court that capital punishment was a greater deterrent than
life imprisonment, the scale would tilt in its favor once the retri-
butive aspects of the punishment were considered. The Crown would
have to buttress its argument by showing that the additional severity
of capital punishment was proportionate to the additional retribu-
tion implicit in the crime. This could be done by referring to the
recent decisions of the United States Supreme Court. 5 These judg-
ments provide strong evidence that another jurisdiction considers
the sentence of -death proportionate to the community’s outrage, for
if this were not the case, the United States Supreme Court would
not have held the death sentence constitutional under any cir-
cumstances. Retribution must have been the decisive factor in
these cases because the prosecutor could not have convinced the
Court that capital punishment deterred murder better than life
imprisonment. There is still too much controversy surrounding its
deterrent effects. Indeed,.Stewart J. suggested that retribution played
a key role in Gregg v. Georgia:

test is to be preferred since attention is not focused exclusively on the shared
beliefs of the community, but upon rehabilitative and deterrent goals as well.

84a Supra, note 24.
5 Supra, note 44.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

[T]he decision that capital punishment may be the appropriate sanction
in extreme cases is an expression of the community’s belief that certain
crimes are themselves so grievous an affront to humanity that the only
adequate response may be the penalty of death.8 6
It is unlikely that the Supreme Court of Canada will adopt the
McIntyre tests in the near future. While Laskin C.J. and the two
judges who concurred with him8s a were prepared to adopt the tests
to some extent, six other members of the Court ignored them com-
pletely. The opinion of Ritchie J., supported by four others, 6b in-
dicates that section 2(b) will play an insignificant role in the disposi-
tion of future cases before the Supreme Court.81 Moreover, like the
opinion of Robertson J.A. in the Court of Appeal, the majority
decision unduly restricts the application of the Canadian Bill of
Rights.88

For Ritchie J. the cruel and unusual punishment mentioned in
section 2(b), did not include capital punishment. He relied on the
words of section 1 (a) of the Canadian Bill of Rights:

[I]n Canada there have existed and shall continue to exist a) the right
of the individual to life, liberty, security of the person and enjoyment of
property and the right not to be deprived thereof except by due process
of law.89

He adopted the interpretation of these words given by Marbland J.
in the case of Regina v. Burnshine;90 the Canadian Bill of Rights did
not purport to create new rights and freedoms, but merely codified
existing rights and prohibited their infringement by any federal
statute. Thus Mr Justice Ritchie reasoned that at the date of enact-
ment an individual who had been convicted of a capital offence
“by the duly recorded verdict of a properly instructed jury”” had no
right to his life.

This conclusion is premised on two assumptions, both of which
are unacceptable. In the first place, Ritchie J. seems to add a proviso
to section 2(b); “cruel and unusual … punishment” seems to become
“cruel and unusual punishment subject to the Criminal Code in

86 Ibid., 5239.
s8a Spence and Dickson JJ.
86b Pigeon, Martland, Judson and de Grandpr6 JJ.
87 Supra, note 52, 340-52.
88 For a recent case comment on the Supreme Court decision and its im-
plications for future interpretation of the Quebec Charter of Human Rights
and Freedoms, S.Q. 1975, c.6, see Brun, Feu la D.C.D. l’arrdt Miller et la
peine de mort (1977) 18 C.de D. 567.

89 S.C. 1960, cA4, s.1(a); R.S.C. 1970, App. III (emphasis added).
90 [1975] 1 S.C.R. 693, 705.
91 Supra, note 52, 343.

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force on August 10, 1960”. Admittedly section 2(b) does not exist
in a vacuum. It must be tied to the body of law and custom inherited
from Britain and developed in Canada. But section 2(b) does acknow-
ledge the existence of a right which has a broader base than any one
particular law in force at the time of the enactment of the Canadian
Bill of Rights. If, as submitted earlier in this paper, 2 Granucci is
correct in his thesis that the English Bill of Rights was a reiteration
of the English policy against disproportionate penalties, then this
policy has become constitutionally entrenched and is part of Cana-
dian law.93 The “cruel and unusual punishment” clause should then
be interpreted in light of the disproportionality principle as well as
the various provisions of the Criminal Code. It has already been
submitteds3a that this would lead to the same result but the method
used would be more in accordance with the intent and purpose of
the Canadian Bill of Rights and would show a greater respect for
the principles upon which the constitution of Canada is founded.
Moreover, it would be consistent with the opinion given by Ritchie J.
himself in Drybones. 94 The Crown in that case had submitted that
Drybones’ right to equality before the law was circumscribed by
the laws of Canada as they existed at the time of the enactment of
the Canadian Bill of Rights, which included section 94 of the Indian
Act.95 To support this argument the Crown invoked the opinion of
Ritchie J. in Robertson and Rosetanni v. The Queen.” To clarify
his position in that case Ritchie J. replied:

If it had been accepted that the right to freedom of religion as declared
in the Bill of Rights was circumscribed by the provisions of the Canadian
statutes in force at the date of its enactment there would have been no
need in determining the validity of the Lord’s Day Act to consider the
authorities in order to examine the situation in light of the concept of
religious freedom which was recognized in Canada at the time of the
enactment of the Bill of Rights. It would have been enough to say that
freedom of religion as used in the Bill must mean freedom of religion
subject to the provisions of the Lord’s Day Act. This construction would
however run contrary to the provisions of s.5:2 of the Bill.97
Ritchie J. also assumed incorrectly in Miller and Cockriell that
due process of law was synonymous with sections 2(e) and 2(f) of

92 See supra, p.164.
93 In R. v. Hess (2) [1949] 4 D.L.R. 199, 208, O’Halloran J. recognized that the
preamble of the British North America Act, 1867, 30-31 Vict., c.3 (U.K.) which
provided for “a constitution similar in principle
to that of the United
Kingdom” thereby adopted the principles of the Bill of Rights of 1689.

93a Supra, p.178.
94 Supra, note 80.
95 R.S.C. 1970, c.1-6.
96 [1963] S.C.R. 651.
97 Supra, note 80, 296.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

the Canadian Bill of Rights.98 According to this line of reasoning, an
individual may be deprived of his life, liberty or the security of his
person by the “duly recorded verdict of a properly instructed jury”99
so long as that jury is acting pursuant to a law of Canada which was
in force at the time of the enactment of the Canadian Bill of Rights.
For section 2(b) to be effective the courts must consider the quality
of treatments and punishments authorized or imposed by federal
laws. However, if the “due process” clause is interpreted in the
manner suggested by Ritchie J., this review mechanism is circum-
vented whenever a given law is one which was in force as of August
10, 1960, and had been applied in criminal proceedings conducted in
accordance with the fundamental principles of justice. Indeed,
Laskin C.J. recognized this problem when he said,

… it is s.2 of the Canadian Bill of Rights which gives force to s.1 and
hence, especially since the prescriptions of s.2 are stated to be effective
“in particular”, I would not diminish their import by reference to what
is more generally prescribed in s.1.300
Finally, it is somewhat disconcerting to find Ritchie J. in agree-
ment with the majority view in the Court of Appeal, contending that
the retention of the death penalty after the enactment of the Cana-
dian Bill of Rights afforded a strong indication of Parliament’s in-
tention to exclude punishment by death from the ambit of section
ooa This view, as mentioned before, 10 1 cannot be sustained
2(b) .1
without doing violence to the text of the Canadian Bill of Rights.
Moreover, even if a judge may seek the meaning of section 2(b) from
legislation enacted after 1960, to what extent must he consider sub-
sequent legislation? On the basis of Mr Justice Ritchie’s opinion,
it could have been argued that the fact that Parliament had since
abolished capital punishment, constituted “strong evidence” that it
had always been intended that the word “punishment” in section
2(b) included punishment by death. Laskin C.J. dismissed such a
proposition when he said:

[T]his court may certainly consider the course of parliamentary enact-
ments and the state of the statute book as of the time when it comes to
a decision but it would abdicate its function if it surrendered to parlia-
mentary policy without making an independent assessment of the comp-
atibility of a particular policy reflected in a challenged statute with the

98 A similar opinion was expressed by Laskin J., as he then was, in Curr v.

The Queen [1972] S.C.R. 889, 898.

99 Supra, note 52, 343.
100 Ibid., 329.
looa Supra, note 52, 344.
101 See supra, p.170.

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Canadian Bill of Rights regardless of a subsequent change in that policy by
Parliament.10 2

B. Solitary Confinement: McCann v. The Queen0 3

A group of inmates at the British Columbia Penitentiary launched
an action in the Federal Court of Canada demanding that their
confinement within the Special Confinement Unit of the Penitentiary
(S.C.U.) be declared cruel and unusual treatment or punishment.
They also demanded a declaration that section 2.30(1) of the
Penitentiary Service Regulations0 4 was inoperative because it con-
flicted with the provisions of the Canadian Bill of Rights. Finally,
the inmates demanded an order compelling the penitentiary director
who was impleaded as a defendant, to act in accordance with the
Court’s declarations.

The evidence revealed that the inmates of the S.C.U. had been
confined to cells eleven by six feet in size with a height of eleven
feet. The cells had three solid cement walls and a solid steel door.
,k light shone inside the cells twenty-four hours a day though it was
dimmed at night. The inmates were required to sleep in close
proximity to the toilet bowl in their cells. The ventilation was poor
and most of the time the cells were either too hot or too cold. They
received very little fresh air exercise and at mealtime they would
be harassed by the guards. The inmates testified that the treatment
they had received had caused them considerable mental suffering
which had led, in certain cases, to physical and psychological de-
terioration, self-mutilation and attempted suicide. Extensive expert
testimony substantiated the evidence given by the inmates them-
selves. Both the penologists and the inmates who had been in
solitary confinement in other institutions agreed that conditions in
the S.C.U. were among the worst anywhere in North America. It
should be noted that at least some of the inmates were dangerous,
unpredictable and showed a propensity to escape.

The Federal Court granted the declaration. Although Heald J.
preferred the minority opinion of the Court of Appeal in Miller
and Cockriell, he followed the majority and applied a conjunctive

o Supra, note 52, 336.
103 Supra, note 7.
104 P.C. 1962-3020, 8 March 1962; SOR/162-90, (1962) 96 Can.Gaz., pt.II, 295,
(no 6, 28/3/1962); enacted pursuant to s28 of the Penitentiary Act S.C. 1960-
61, c.53. S.2.30(1) authorizes the director of a penitentiary to order an inmate
to be dissociated from the other inmates, where in his discretion such
dissociation is necessary “for the maintenance of good order and discipline
in the institution” or “in the best interests of the inmate”.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

interpretation, finding that the conditions in the S.C.U. constituted
cruel and unusual treatment according to the ordinary meaning of
those words.105

Heald 1. had no difficulty in coming to the same conclusion when
he applied the tests propounded by McIntyre S.A. In the first place
it was found that solitary confinement as practised at the British
Columbia Penitentiary did not serve to rehabilitate the inmates.
Indeed, the penitentiary director admitted as much and similar
opinions were given by penologists who were called to testify. Thus
the only possible justification for continued confinement in the
S.C.U. was the maintenance of good order and discipline in the
institution. However, while this was a legitimate social purpose in
view of the character and disposition of the inmates in question, it
could have been achieved without imposing the unwholesome con-
ditions which existed in the S.C.U. While Mr Justice Heald made it
clear that it was not his function to make specific recommendations
he nevertheless subscribed to those submitted by an expert. Some
of the recommendations included the removal of solid steel doors,
the enlargement of segregation cells, the closure of lights during
the night and the abolition of mandatory sleeping positions. 0 6 Other
suggestions included daily outdoor exercise, visiting between in-
mates within a “secured” area and less deprivation of personal
possessions. There would also appear to be general agreement that
prolonged and continuous solitary confinement is dangerous to the
mental and physical well-being of the inmate. This latter finding
could raise a great deal of difficulty, for in the absence of an adequate
alternative it would seem that the inmates’ mental and physical
health would have to be sacrificed. 0 T

1o5 Supra, note 7, 695. At the time of the ruling, the Supreme Court of Canada

had not yet rendered its decision in Miller and Cockriell.

106 Ibid., 681.
107 It should not be assumed that there is unanimity of opinion on the
characterization of certain features of solitary confinement as cruel and
unusual treatment or punishment. Within two years of the decision
in
McCann, the B.C.S.C. refused to follow it. In Regina v. Bruce, Wilson and Lucas
(1977) 36 C.C.C. (2d) 158, three inmates of the B.C. Penitentiary charged with
extortion and kidnapping in the taking of hostages, pleaded that there was a
reasonable justification or excuse for the commission of extortion and raised
the defence of necessity. Relying on the decision in McCann and the evidence
of the same experts who had testified in that case, the inmates argued that
what they had done was prompted by the fear that their administrative
segregation was imminent and their physical and mental well-being was
endangered.

Toy J. held that the conditions of solitary confinement at the B.C. peniten-
tiary did not constitute cruel and unusual treatment or punishment. Preferring

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In spite of granting a declaration that the conditions in the
S.C.U. were cruel and unusual, Heald J. refused to grant the inmates’
request for a declaration that section 2.30(1) of the Regulations was
inoperative. He reasoned that

… the clearly stated objective of Regulation, s.2.30(1) 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. 08

Since section 2.30(1) implemented section 91:28 of The British North
America Act, 1867108 Heald J. could find constitutional support for
its continued operation. 100
In finding such support, the learned
justice had adopted an argument which had previously been used in
connection with section 1(b) of the Canadian Bill of Rights.'” Ac-
cording to the “B.N.A. Argument”,”‘ the Canadian Bill of Rights has
not rendered Parliament powerless to exercise the authority entrusted
to it by the Constitution.”‘

It becomes apparent from the Federal Court’s alternative res-
ponses to the inmates’ first two demands that a different rule will
apply where the issue concerns the operation of a law than where
the issue is simply whether the particular facts of the case point to
a violation of a right guaranteed in the Canadian Bill of Rights.
The courts, wherever possible, seek to construe federal laws in
accordance with the Canadian Bill of Rights. Despite the fact that
an infringement of a right recognized and declared therein has been
carried out pursuant to the execution of a federal law, if that law can
be construed in such a way that it is consistent with the Canadian
Bill of Rights, the court will not interfere with its continued opera-
tion.

to treat the expression “cruel and unusual” in its compendious form, the judge
attempted to apply the vague formula suggested by Laskin C.J. in Miller and
Cockriell (see supra, p.172) concluding that the treatment administered was
not “so excessive as to outrage standards of decency” (supra, note 52, 170).
The views of experts were given short shrift, since the judge felt that
there was a distinction to be made between standards accepted from the
standpoint of penology and those set out in section 2(b) of the Canadian Bill
of Rights. The decision is on appeal.
108 Supra, note 7, 696. See also Regina v. Roestad (1972) 5 C.C.C. (2d) 564

(Ont.County Ct).

io8a 30-31 Vict., c.3 (U.K.).
109 Supra, note 7, 696.
1l0 A.G. Canada v. Canard (1975) 52 D.L.R. (3d) 548, 571-73 (S.C.C.).
M Hogg, The Canadian Bill of Rights – Equality Before the Law, A.G.

Canada v. Lavell (1974) 52 Can.Bar Rev. 263, 266.

“‘a This emerges from the preamble of the Act, which declares that the
Canadian Bill of Rights was enacted so as to reflect the respect of Parliament
for its constitutional authority.

1978]

CRUEL AND UNUSUAL PUNISHMENT CLAUSE

From one perspective, this is understandable. Clearly, much con-
fusion would ensue if the courts were to render a federal law in-
operative every time a violation of the Canadian Bill of Rights
occurred. However, if McCann is a reflection of what has become
normal practice, it is submitted that the courts’ approach has become
too cautious. Stability will not be unduly threatened if an attempt
is made to look beyond the words of the law in question to determine
whether it should operate. Indeed the words of the enactment can
only be understood in light of surrounding circumstances. If judicial
notice is taken of the fact that there have been persistent violations
of the Canadian Bill of Rights committed in the course of executing
a particular federal law, chances are that the broad language in
which the law is couched lends itself to such abuse. If this is the
case, the law should be rendered inoperative so that a new one may
be written which is less likely to be abused. In light of recent
publicity concerning conditions in solitary confinement in other
penitentiaries”‘ one may wonder whether Heald J. was correct in
dismissing the conditions in the S.C.U. as an isolated incident.

In response to the inmates’ final demand, Heald 1. refused to
grant an order compelling the head of the institution to respect the
Court’s declaration that the inmates’ confinement was cruel and
unusual treatment within section 2(b). The order sought was
essentially one of mandamus and since the award of a prerogative
writ lies within the court’s discretion,”13 the refusal might have been
justified on the grounds that to grant such a remedy would be to
“introduce confusion and disorder” into the penitentiary system.”14
The order would effectively prevent the confinement of inmates
within the S.C.U. and if alternative facilities were not available within
the institution, inmates would have to be transferred. If inmates in
other institutions with sub-standard conditions were to file similar
applications, the net result would be to overcrowd those peniten-

11 The Montreal Star, Feb. 19, 1977, H-15, reported that Ren6 Vaillancourt,
a convicted murderer serving time at Millhaven Penitentiary, ordered a Toronto
lawyer to take action on his behalf for alleged cruel and unusual treatment
he had suffered due to six months of solitary confinement, during which he
was confined to a narrow cell for up to twenty-three hours a day. See also
Le Devoir, Montreal, Feb. 19, 1977, 3 and The Globe and Mail, Toronto, Feb. 19,
1977, 4. For a more thorough examination of conditions in Canadian prisons,
see McNeil & Vance, Cruel and Unusual, (1978).

“3 See de Smith, Judicial Review of Administrative Action 3d ed. (1973), 510.
“4 Tapping, The Law and Practice of the High Prerogative Writ of Mandamus
as it obtains both in England and Ireland (1853) no 16, 68; Connelly v.
Publicover [1940) 4 D.L.R. 43 (N.S.S.C.); R. v. Paddington Valuation Officer,
ex.p. Peachey Property Corporation Ltd [1964] 1 W.L.R. 1186 (Q.B.).

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[Vol. 24

tiaries which met the requirements set by the Federal Court in
McCann. A court could exercise its discretion by refusing to grant
an injunction enjoining penitentiary authorities from carrying out
a director’s order to confine an inmate to a sub-standard cell upon
similar grounds.”

However, a court is not precluded from granting mandamus or an
injunction if it sees fit to do so. In Regina v. Institutional Head of
Beaver Creek Correctional Camp, Ex parte MacCaud”6 the Ontario
Court of Appeal recognized that the prerogative writ of certiorari
would lie with respect to the exercise by an institutional head of a
penitentiary of his disciplinary jurisdiction if -the procedure sought
to be reviewed was one which was required to be exercised judicially
and the institutional head had acted in excess of his jurisdiction.”1
It therefore follows that mandamus which will normally lie even
where the respondent is not required by law to act judicially,11 8
should be available against the director of a penitentiary where he
has acted outside the powers conferred upon him by legislative
enactment. Section 2.27 of the Penitentiary Service Regulations”‘
casts upon the head of a penitentiary the duty to “take all reasonable
steps to ensure the safe custody of inmates committed to his care”. 1 20
Section 2(b) of the Canadian Bill of Rights as interpreted by the
decision in McCann defines what conditions are required to ensure
the safe custody of inmates in solitary confinement. If facilities
which meet these conditions are readily available, it is reasonable to
expect that the inmate will be confined to them alone. If a peni-
tentiary director orders that an inmate be confined to other sub-
standard facilities he has clearly exceeded his jurisdiction and
mandamus should lie to compel him to act in accordance with the
powers which have indeed been given to him. The same reasoning
should apply when an injunction is sought, for it has been held that
unauthorized action by Crown officials is not protected by doctrines
of Crown immunity because such actions are not really official
actions at all.’

115 Supra, note 113, 391.
11 (1968) 2 D.L.R. (3d) 545, [1968-9] 5 C.R.N.S. 317 (Ont.C.A.).
117 bid., 554.
“18I.C.E.D, (Ont.) 3d ed. (1973) Administrative Law, s.161.
19P.C. 1962-3020, 8 March 1962; SOR/169o90 (1962) 96 Can.Gaz., pt.II, 295,
(no 6, 28/3/1962); enacted pursuant to s.28 of the Penitentiary Act S.C. 1960-
61, c.53.

120 Ibid., s.2.27.
l21Nireaha Tamaki v. Baker [1901] A.C. 561 (P.C.), applied in Canada in
Rattenbury v. Land Settlement Board [1929] S.C.R. 52. Also see Strayer, In-
junctions Against Crown Officers (1964) 42 Can.Bar Rev. 1, 12.

1978]

CRUEL AND UNUSUAL PUNISHMENT CLAUSE

Section 2(b) of the Canadian Bill of Rights also serves as a
yardstick for measuring the standard of care which is required of
prison authorities by the common law.12 2 Penitentiary authorities are
not exercising reasonable care in providing for the inmates’ safety
when they permit confinement which has been declared cruel and
unusual by a court of law. Consequently, an action in tort could
be taken against the Crown under section 3(1)(a) of the Crown
Liability Act. 12

C. Mandatory Minimum Sentences: Regina v. Shand 124

There are few mandatory minimum sentences in the Criminal
Code.12 5 One the most severe is prescribed under the Narcotic
Control Act.126 Under section 5(2) of the Act there is a minimum
sentence of seven years imprisonment for anyone convicted of im-
porting a narcotic. In Regina v. Shand, the accused pleaded guilty
before Borins J. to a charge under section 5(2). While in Peru, Shand
had purchased twenty-four ounces of cocaine for $800.00. The
substance had a street value of $1000.00 an ounce. Shand had hidden
the cocaine in a false compartment in one of his suitcases and loaned
it to a Miss Thompson, who was not informed of its secret contents.
The two returned to Canada together but disembarked separately
at Toronto International Airport. When the cocaine was discovered
in Miss Thompson’s suitcase by a customs officer, she was charged
with importing a narcotic. Some two weeks later Shand voluntarily
came forward and admitted responsability for importing the cocaine
into Canada, explaining that he felt “morally obliged” to confess
since his business partner had been “wrongly charged”.12 His
intention in purchasing and importing the cocaine had been to
realize a quick profit. Shand was clearly not in the business of im-
porting narcotics and had constructed the false compartments in
his suitcases for the purpose of circumventing laws which prohibited
the removal of precious artifacts from various South American
countries. Canada had no corresponding laws prohibiting the im-

122Ellis v. Home Office [1953] 2 All E.R. 149 (C.A.); Timm v. The Queen

[1965] 1 Ex.C.R. 174.
123 R.S.C. 1970, c.38.
124 (1976) 64 D.L.R. (3d) 626 (Ont.County Ct).
‘ R.S.C. 1970, c.C-34, s.218(1) (first and second degree murder), s.47 (high
treason), s.234(b) (driving a motor vehicle while under the influence of
alcohol or drugs).

126 R.S.C. 1970, c.N-1.
121 Supra, note 124, 659.

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portation of such artifacts. Indeed, Shand had never been involved in
any criminal proceedings prior to this incident. At trial, various wit-
nesses testified on his behalf that the commission of the offence was
completely out of character. Shand himself testified that he had
acted impulsively and that what he had done was a “gross mis-
take”. 128 It was argued on his behalf that the mandatory minimum
sentence constituted cruel and unusual punishment in this .case.
A declaration was sought that section 5 (2) was inoperative.

Although Judge Borins declined to grant the declaration, he held
that he was not bound by section 5(2) in Shand’s case because in
relation to the offender and the facts which led to his conviction,
seven years imprisonment constituted cruel and unusual punish-
ment. 2 9 Sentencing Shand to two years, less one day and a fine of
$5000.00, Judge Borins thought that in this case rehabilitation,
deterrence of future misconduct and the protection of society were
not legitimate social purposes and should be disregarded in determin-
ing a suitable penalty. The fine was appropriate because of the
element of anticipated profit. The Attorney General of Canada
successfully appealed on behalf of the Crown and the Ontario Court
of Appeal imposed the minimum seven year sentence. 30

While the McCann case had already been decided by the time the
County Court ruled in Shand, the Supreme Court decision in Miller
and Cockriell had not yet been delivered. Like Heald J., Judge Borins
preferred to rely on Mr Justice McIntyre’s interpretation of section
2(b) rather than the one given by the majority of the Court of
Appeal.131 Four tests were used to determine whether the mandatory
minimum sentence would run afoul of section 2(b) in this case.

The first test, an offshoot of the “public decency test”, had been
in the Trop’3 ‘a case and by Brennan J.
used before by Warren C.J:.
in Furman.13b Simply stated, the test provided that in determining
whether a punishment is cruel and unusual, the court must ask
whether the punishment comports with human dignity. 32 This test
did not prove to be a decisive factor in the resolution of the issue
before the County Court and it is submitted that the test will never
be of any practical assistance in determining which punishments

128 Ibid., 630.
129Ibid., 662.
130 (1976) 70 D.L.R. (3d) 395.
131 Supra, note 50.
131a Supra, note 29.
131b Supra, note 31.
132 Supra, note 124, 639.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

come into conflict with section 2(b). Polsby, commenting on the use
of the test in Furman, recognized this when he said:

This formula affords no means of distinguishing cruel and unusual punish-
ment from punishment in general. All punishment affronts human dignity.
That in some sense is one of its important purposes. So long as the criminal
process is used to label intolerable behavior as intolerable and to castigate
those who have stepped out of bounds it is inevitable that the sensibilities
of whoever suffers at the hands of justice will smart … . The question
therefore is not whether human dignity is affronted but whether it is
affronted in a way or to an extent which is impermissible …. Thus we
must seek further for the distinguishing characteristics of cruel and un-
usual punishments.133
The second test used by Judge Borins was the “arbitrariness
test” and this proved to be of some assistance in reaching a decision.
Just as McIntyre J.A. had questioned whether the Cabinet could
exercise its discretion in commuting sentences of death to life im-
prisonment in anything but an, arbitrary manner, Judge Borins
doubted whether the prosecutor could exercise his discretion fairly
in the formulation of charges to instigate prosecutions. 34 Shand
could have been charged with possession of narcotics or possession
for the purpose of trafficking – neither of which carry a mandatory
minimum of seven years imprisonment.’3 5 Judge Borins relied on
statistics compiled in the LeDain Report 6 which revealed that over
a three year period in Quebec convictions for importing made up a
greater proportion of the total convictions in that province for
offences under the Narcotic Control Act than in Ontario over the
same period of time. These statistics are far from conclusive evidence
that section 5(2) was being arbitrarily enforced. There was no data
indicating in how many cases prosecutorial discretion was exercised
in Quebec and Ontario to lay a charge for an offence other than
importing when the accused was apprehended while bringing a
narcotic into Canada.137 Nor can it be said that the case of Shand
himself was evidence that the law was being arbitrarily administered
for there was no way of knowing whether other charges had been
laid in cases similar to Shand’s.

If the Supreme Court continues to assume that the burden is
upon the defence to prove that a law is in conflict with the Canadian
Bill of Rights, it is unlikely that this evidence will ever surface.

133 Supra, note 67, 19.
‘ 3 Supra, note 124, 640.
’35 Narcotic Control Act, R.S.C. 1970, c.N-1, ss.3(2), 4(3).
136 Final Report of the Commission of Inquiry into the Non-Medical Use of

Drugs, Information Canada (1973).

13 7 Supra, note 124, 641.

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Since the “arbitrariness test” provides one of the more accurate
guides in determining whether a sentence is cruel and unusual and
in view of the fact that the Crown could obtain the information
required for the application of this test far more easily than any
individual, the prosecution and not the defence should assume the
burden of proving that the charge of importing narcotics is being laid
in accordance with ascertained or ascertainable standards. This
would encourage the prosecution to prepare its arguments more
carefully and in turn would lead to more informed judgments. More-
over, if the prosecution cannot show that charges are being laid upon
a rational basis, then the mandatory minimum sentence upon convic-
tion cannot but be applied arbitrarily and section 5(2) would pro-
perly be declared inoperative.

The Court of Appeal however did not dismiss the claim of arbi-
trariness on the ground that the defendant had failed to substantiate
his allegation. Arnup J.A., giving the opinion of the Court, eliminated
the possibility that prosecutorial discretion was reviewable in a court
of law when he said that it was “unfettered”.138 While some support
for this view can be found in Smythe,139 Laskin C.I. in Miller and
Cockriell stated that it could not be “assumed” that prosecutorial
discretion would be “incompetently or dishonestly exercised”. 140 The
Chief Justice’s cautious choice of words leaves open the possibility
that the prosecution might have to account for its actions in the
future.

Indeed, in R. v. Ittoshat1 4’ a stay of proceedings was granted when
an Indian was brought a thousand miles from his home to be tried
for cauging a disturbance in a public placel 4la. Malouf J. stated the
following:

[T]his court has not only the right but also the duty to protect citizens
against harsh and unfair treatment. The duty of this Court is not only
to see that the law is applied but also, which is of equal importance, that
the law is applied in a just and equitable manner. 42
A distinction should be drawn between judicial review of prose-
cutorial discretion on a case by case basis and judicial review of the
legislation which creates opportunities for the prosecutor to exercise
this discretion. The administration of the criminal justice system

Lafleur (1967) 3 C.C.C. 244, 248.

138 Supra, note 130, 406.
139 Supra; note 63. See also R. v. Court of Sessions for the Peace, Ex parte
14o Supra, note 52, 340.
141 (1970) 12 D.L.R. (3d) 266, 5 C.C.C. 159 (C.S.).
141a S.C. 1953-54, c.51, s.160(a) (ii); now R.S.C. 1970, c.C-34, s.171(1)(a)(ii).
42 Supra, note 141, 162.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

would not be hampered by allowing review on a case by case basis.
It is therefore difficult to share the concern which Arnup S.A. ex-
pressed in the Court of Appeal.

Two other criticisms of the Court of Appeal’s decision must be
made. While Arnup J.A. said that he was prepared to accept the “so-
called ‘disproportionality principle’ “143 he was not prepared to apply
it in Shand’s case. He purported to apply the test by invoking the
American case of The People v. Broadie’4 where statutory minimum
sentences for drug offences (some longer and some shorter than
seven years) were held to be constitutional because they were not
grossly disproportionate to the offences for which they were pre-
scribed. It should be noted though, that in reviewing the offences
which included drug trafficking, the Court in that case attached
considerable weight to the “epidemic dimensions of drug abuse” in
the State of Nev York.14 5 In Canada, however, the distribution of
harmful and unlawful drugs is not a “widespread and pernicious
phenomenon”’14 a and therefore it would seem that Arnup J.A. erred
in selecting New York as a standard of comparison. As the Court in
Broadie pointed out: “[t]hat the harsh penalties for drug trafficking
were prescribed in response to a more prevalent crime problem must
be weighed in any ‘external’ comparison”. 146

Judge Borins, on the other hand, applied the “disproportionality
test” with more success. He noted that in the United Kingdom no
mandatory minimum sentence was provided for importing narcotics.
He then made “an internal comparison” by considering the punish-
ments authorized for similar offences under the Food and Drug
Act. 47

In order to find “similar offences” one must have a gauge for
measuring the gravity of a crime. Professor Wheeler 14 has suggested
two criteria: first, the harm that each instance of the crime causes
society; and second, the moral culpability attached to the crime
itself. Borins J. adopted the first. To determine the harmful effects
of cocaine he referred to the LeDain Report and summarized the
Commission’s findings:

143 Supra, note 130, 409.
144371 N.Y.S. (2d) 471 (1975).
145 Ibid., 480-81. Over half the addict population in the U.S. is located in
New York City. The Court noted that while drug trafficking was punished
more severely in New York than in other jurisdictions, California (where a
similar drug problem existed) imposed punishment almost as severe.

145a Ibid., 476.
146 Ibid., 480.
147 R.S.C. 1970, c.F-27.
148 Supra, note 72, 73-74.

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With repeated administration of large doses, a toxic psychosis can develop.
Significant adverse psychological reactions to cocaine are reported to be
rare in Canada. Also, there is little evidence of a significant incidence
of adverse physiological reactions to cocaine in Canada. No deaths from
the use of cocaine were reported in the years 1969-71. Cocaine can produce,
in some people, psychological dependence in the sense that there is often
a preoccupation with obtaining the drug, compulsive and repeated self-
administration and craving for the drug upon withdrawal in heavy users.
Most authorities feel that no significant physical dependence develops
with cocaine use, although it may be capable of forming some subtle kind
of physical dependence. 149

This summary would aptly describe the effects of alcohol as well.
However, alcohol, unlike cocaine, does not carry any similarly severe
penalties for its use, sale or importation.

As far as Wheeler’s second criteria is concerned, although Borins J.
did not deal directly with the question of whether a mandatory
minimum sentence of seven years is a reflection of the blame-
worthiness of importing cocaine, he did invoke the Food and Drug
Act as a point of reference. It should be noted that under that Act
importing L.S.D. does not carry any mandatory minimum penalty.”‘
It is difficult to accept that the degree of moral culpability attached
to the offence of importing cocaine or for that matter, its harmful
effects could be that much greater than the moral culpability and
harmful effects associated with the importation and use of L.S.D.
Certainly any differences between the two could not justify the
enormous discrepancy between the accompanying sentences. It
is submitted therefore that Borins J. was correct in concluding that
the seven year minimum sentence authorized for the offence of
importing cocaine was excessive.

The second cause for complaint in the Court of Appeal’s decision
is the complete rejection bythe Court of individualized sentencing
determinations. The United States Supreme Court has made it clear
that statutes which prescribe capital punishment for a broad category
of offenders without taking into account factors such as previous
record, character of the accused and all the circumstances surround-
ing the commission of the offence will be struck down as violating
the Eighth Amendment.'” The main thrust of Borins J’s opinion in

149 Supra, note 124, 660.
150 R.S.C. 1970, c.F-27. S.33 of the Act provides that trafficking includes im-
porting, and under s.42(3), there is no mandatory minimum sentence for
trafficking in a restricted drug. The maximum penalty is 18 months where
the prosecutor proceeds by way of summary conviction, and 10 years where
he proceeds by way of indictment. L.S.D. is a restricted drug. See s.40 and
Schedule H of the Act.

151 Supra, note 31.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

Shand was that mandatory minimum sentences “[remove] from the
trial Judge a substantial degree of the discretion possessed by the
Court in the imposition of a sentence”. 52 He contended that section
5(2) of the Narcotic Control Act “ignores the fact that different
quantities of narcotics may be involved, that some narcotics are far
less harmful than others, that any intent to traffic in the narcotic
may be absent, the background of the accused, and possible miti-
gating circumstances”.’ 5′ The inability to review prosecutorial dis-
cretion when taken together with broad mandatory sentencing pro-
visions, would result in great injustice. The trend in. sentencing is
towards relating the punishment to the criminal as well as the crime.
In Shand, the seven year sentence took no account of the fact that
the accused had no previous record, that he was unlikely to repeat
the offence and that the offence itself was committed impulsively
and out of character..5 3

a

On this basis alone and without regard to any evidence concern-
ing the exercise of prosecutorial discretion it is difficult to see how
section 5(2) can be applied in a rational manner. When the crime
itself is considered, it is also clear that the prescribed sentence is
disproportionate. For both these reasons, it would appear that
Borins J. was correct in refusing to apply section 5(2) to the parti-
cular facts of the case before him and would have been justified in
declaring the section inoperative in the future.

III. Conclusion

The prospects of applying section 2(b) of the Canadian Bill of
Rights so as to provide a legal recourse for those who are victimized
by federal laws which authorize the imposition of cruel and unusual
treatments and punishments are not very encouraging. Since the
Supreme Court in Miller and Cockriell was unanimous in holding
that capital punishment as it existed in Canada prior to its repeal
did not violate section 2(b) of the Canadian Bill of Rights, Parliament
could adopt a mandatory death sentence once again without any fear
that it would be rendered inoperative in the courts.

The application of section 2(b) to mandatory minimum sentences
poses a special problem. Practitioners have been quick to accept the

152 Supra, note 124, 646.
153Ibid.
153a It is beyond the scope of this paper to discuss whether individualized
sentencing determinations should be within the jurisdiction of the legislature
or the judge.

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Ontario Court of Appeal’s decision in Shand as the final word on
the matter. As mentioned above, the decision does not rest on a firm
legal footing and should therefore be disregarded by future courts.
If, as was the case in Shand, the prosecution cannot prove on
a balance of probabilities that: (1) the mandatory minimum sentence
for importing narcotics is proportionate to the offence; (2) it is
necessary to satisfy legitimate social purposes; and (3) it is compati-
ble with a rational sentencing procedure, committed to individual
sentencing determinations, the courts are bound to disregard the
sentence. Traditional doctrines of parliamentary sovereignty and
administrative inviolability must not interfere with the consequences
which flow from the application of tests which have proven to be
the most accurate in determining whether punishment is cruel and
unusual. While Canadian judges continue to be suspicious of the
Canadian Bill of Rights, a defence attorney who is quite certain that
his client will be convicted of importing narcotics, has little to lose
and much to gain by invoking section 2(b). It is only through a com-
bination of perseverance and patience that a fundamentally inequi-
table law such as section 5(2) of the Narcotic Control Act will even-
tually become inoperative.

Solitary confinement and general conditions in Canadian peniten-
tiaries pose problems which the courts are ultimately inequipped to
handle. It is not enough to say that a court may make an order which
effectively prevents the confinement of an inmate to a cell in which
conditions do not meet the standards set by section 2(b). The ques-
tion remains whether the courts will make such an order. The
history of judicial appointments in Canada gives little reason to
expect that Canadian judges will be at all sympathetic to prisoners
who have legitimate cause for complaint. Nearly ten years ago
Professor Russel said that judicial appointments seldom went to
lawyers or jurists who, in their earlier careers, manifested a lively
interest in or associated with the social issues surrounding questions
of civil liberties. T4 The case of Miller and Cockriell and the Court
of Appeal decision in Shand suggest that these remarks may be
equally applicable today. However, even if future judges show a
greater interest in the maintenance and promotion of civil liberties
it would be unrealistic to expect them to exercise their discretion by
granting orders compelling penitentiary authorities to conform with
acceptable minimum standards of treatment when the requisite
facilities for such treatment are simply not available. The problem
will not be resolved by compensating those who are ill-treated for

154 Russel, A Democratic Approach to Civil Liberties (1969) 19 U.of T.L.J.

109, 124.

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CRUEL AND UNUSUAL PUNISHMENT CLAUSE

the damages they have suffered. Nor will a court’s declaration that
penitentiary conditions are cruel and unusual serve as “practical
guidance” to penitentiary authorities as Mr Justice Heald had anti-
cipated in McCann. Within a year after the McCann decision was
rendered, there had been at least five outbreaks of violence at the
British Columbia Penitentiary, all motivated by treatment of the
prisoners. 15 In a statement made by the Inmates Committee on
October 18, 1976, the following remarks were made concerning the
repair of the riot-torn east wing of the penitentiary, the ravaged
north wing and B-7 living unit:

Both of these units should have been condemned by Government agencies
years ago. There are those that claim they have been. The irony of it all
is that the antiquated conditions of these death traps, with no running
hot water, no ventilation, cells more horrible to live in than the worst
zoo cages, are to be restored once again with public funds…. The British
Columbia Penitentiary has become nothing less than a disgrace to Ca-
nada. 56
The Federal Court’s inability to stimulate penitentiary reform is
tragically illustrated by the fact that the Solicitor General of Canada
waited until riots had broken out in September of 1976 at New
Westminster, Laval, and Millhaven, before setting up a special com-
mittee to enquire into the state of the Canadian penitentiary system.
Relief will only come when the federal government is prepared
to adopt as a basis of reform the suggestion of two members of the
British Columbia Attorney General’s Department who, in their brief
to the Special Committee said that the act of sending a person to
prison was the punishment and it was beyond the prison’s role to
create further punishment while he was there157

At present, section 2(b) appears to be destined to follow the lead
of its predecessor in the English Bill of Rights, for if the interpreta-
tion given to it by the Supreme Court is followed it will serve as no
more than a statement of principle. In order for a principle to be
vital, it must be applied in practice and this will entail an ex-
traordinary effort on the part of the Government and the private and
public sectors. In the absence of effective legal remedies which can
protect the dignity of the individual, one is forced to fall back on
human resources. One can only hope that the Canadian people are
ready and willing to accept the challenge.

155 The Globe and Mail, Toronto, Feb. 16, 1977, 8.
156 This statement was sent to the Office of Civil Liberties, National Capital
Region on Oct. 19, 1976 by a friend of the Secretary-Treasurer of the Inmates
Committee. The author would like to thank L’Office des Droits des D6tenus
de la League des Droits de L’Homme for making a copy of the document
available.

157 The Globe and Mail, Toronto, Feb. 19, 1977, 11.