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Charter - s.12 Cruel and Unusual Treatment or Punishment

. R. v. Abdelrazzaq

In R. v. Abdelrazzaq (Ont CA, 2023) the Court of Appeal considered whether Charter s.12 ['cruel and unusual punishment'] was violated by CCC 462.3(3) 'orders of forfeiture of property - fine instead of forfeiture'. The specific aspect of s.12 doctrine examined was that of when and whether 'reasonable hypothetical' scenarios could be examined to determine Charter-acceptability. This aspect of s.12 Charter-doctrine goes against convention in that normally the courts should only test the Charter against actual fact situations before it. This gives rise to serious stare decisis problems - namely 'how far' and 'how binding' are any findings that Charter s.12 is violated.

In allowing the Crown appeal, the court held that 'reasonably hypothetical' scenarios could be considered in applying stare decisis to subsequent Charter findings:
[2] At sentencing, the parties agreed that the proceeds from the sales of the cocaine ($74,560) were subject to forfeiture upon conviction pursuant to s. 462.37(1) of the Criminal Code, R.S.C. 1985, c. C-46. The parties also agreed that the funds were not available for forfeiture at the time of sentencing. As the funds were not available, a forfeiture order under s. 462.37(1) could not be made. The Crown sought an order pursuant to s. 462.37(3) imposing a fine in the amount of the value of the cocaine ($74,560) in lieu of a forfeiture order. The Crown also sought a term of imprisonment in default of payment of that fine as provided for in s. 462.37(4)(iv).

[3] The respondent challenged the constitutionality of ss. 462.37(3) and (4). He argued that the sections contravened s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms. The respondent’s s. 12 argument had two parts. First, he submitted that the provisions as applied to the facts and circumstances of his case contravened s. 12. Second, he submitted that the provisions contravened s. 12 when applied in other reasonably foreseeable circumstances.

[4] The trial judge rejected the respondent’s s. 7 argument. He also rejected the submission that the application of the challenged provisions to the circumstances presented in the respondent’s case infringed s. 12. The trial judge did, however, hold that the application of the challenged provisions to offenders in circumstances presented in two reasonable hypotheticals would violate s. 12. The trial judge concluded the infringement could not be justified under s. 1. Having held the section unconstitutional, the trial judge declined to impose a fine in lieu of forfeiture.


[63] In his reasons, the trial judge acknowledged that this court had recently upheld the constitutionality of the fine in lieu of forfeiture provisions which were being challenged before him. He accepted that in the normal course, he was bound by the decision of this court. The trial judge was satisfied, however, that the result in Chung was not binding on him because the reasonable hypotheticals considered in Chung were radically different from the hypotheticals raised before him. In the trial judge’s view, the differences in the hypotheticals significantly changed the nature of the constitutional challenge and the s. 12 analysis.

[64] Counsel for the respondent contends the trial judge was correct in holding he could come to his own determination of the constitutionality of the provisions, no doubt guided by the analysis in Chung. Counsel submits that the very different hypotheticals raised before the trial judge put in play considerations relevant to the constitutional analysis that were not present in the hypotheticals relied on in Chung.

[65] The value of precedent would be greatly diminished if a new s. 12 argument could be advanced every time counsel imagined a different reasonable hypothetical. In Nur, at para. 71, McLachlin C.J. (as she then was) drew the distinction between legitimate consideration of truly new hypotheticals and relitigation in contravention of the stare decisis principle:
[C]an the offender in a future case argue that the provision as applied to others violates s. 12? The answer to this question is that it depends. Once a law is held not to violate s. 12, stare decisis prevents an offender in a later case from simply rearguing what constitutes a reasonably foreseeable range of the law. But stare decisis does not prevent a court from looking at different circumstances and new evidence that was not considered in the preceding case. A court’s conclusion based on its review of the provision’s reasonably foreseeable applications does not foreclose consideration in future of different reasonable applications [citation omitted]. That said, the threshold for revisiting the constitutionality of a mandatory minimum is high and requires a significant change in the reasonably foreseeable applications of the law.
[66] I accept that the reasonable hypotheticals used by the trial judge were very different from the reasonable hypotheticals advanced at trial in Chung. However, the determination as to whether the trial judge was ultimately bound by Chung cannot turn simply on a comparison of the reasonable hypotheticals that were before the respective courts. The real question is, did Chung decide the constitutionality of the fine in lieu of forfeiture provisions as they applied to offenders like those described in the hypotheticals used by the trial judge? If the answer is yes, the trial judge was bound by Chung regardless of the reasonable hypotheticals considered in Chung. That question can only be answered by reference to the arguments made in Chung and the reasons given by this court for dismissing the constitutional challenge in Chung.

[67] In Chung, the three accused were involved in a multi-million dollar fraud on the Ontario Lottery and Gaming Corporation. Two of the three accused received substantial jail sentences, were ordered to forfeit several million dollars, were ordered to pay restitution of over $12,000,000, and were ordered to pay a fine in lieu of forfeiture of $2,300,000 each.

[68] At the sentencing, the same two accused challenged the constitutionality of the fine in lieu of forfeiture provisions, arguing they violated s. 12 of the Charter. They submitted that a minimum sentence of not less than five years for default in payment of the fine, as required under the statute, constituted cruel and unusual treatment.[6]

[69] The trial judge in Chung described the narrow ambit of the constitutional challenge to the fine in lieu of forfeiture provisions in his reasons for sentence: R. v. Chung, 2018 ONSC 6633, 424 C.R.R. (2d) 1, at para. 14:
Ms. Presser [counsel for one of the accused] points out that the constitutional challenge is carefully tailored to focus only on the minimum terms of imprisonment fixed by s. 462.37(4) of the Code. There is no challenge to the overall scheme of the system of fines in lieu of forfeiture, with terms of imprisonment in default.
.[70] In support of the constitutional argument summarized above, counsel advanced four hypotheticals. All involved offenders who had been ordered to pay fines in lieu of forfeiture of $1,500,000. In the hypotheticals, the offenders had not paid the fines owed by the due date for various reasons, ranging from poor investments, to addiction, to lifestyle choices. The accused argued that in the circumstances presented in the hypotheticals, a five-year minimum sentence in default of payment (with adjustments for any amounts paid on the fine) was so grossly disproportionate as to amount to cruel and unusual treatment.

[71] The trial judge rejected the s. 12 argument. He released his reasons a little over a month before the Supreme Court of Canada released its reasons in Boudreault. There was no argument before the trial judge based on any analogy between the fine in lieu of forfeiture provisions and the victim surcharge provisions. Not surprisingly, the trial judge made no reference to the victim surcharge provisions in his analysis of the constitutional challenge advanced before him.

[72] By the time Chung reached this court in October 2020, Boudreault had been decided. Although the appellants in Chung did not alter the hypotheticals they had relied on at trial, they did significantly expand their s. 12 argument. The analysis of the victim surcharge in Boudreault became the centrepiece of the appellants’ constitutional challenge. For example, relying on Boudreault, counsel submitted in their factum that:
[T]he need to continually return to court to apply for extensions of time to pay effectively exposes impecunious offenders to an indeterminate sanction.
[73] Like the arguments which found favour with the trial judge in this case, the arguments advanced on appeal in Chung rested on the contention that the effect of the fine in lieu of forfeiture provisions on impoverished and marginalized offenders was no different than the effect of the victim surcharge provisions imposed on the same offenders and determined to be unconstitutional in Boudreault.

[74] This court, in Chung, considered the application of Boudreault to the fine in lieu of forfeiture provisions at some length. The court clearly appreciated that the comparison of the operation of those provisions was being made in the context of the application of the provisions to offenders like those described in Boudreault. As the court observed, the offenders were the impoverished and uneducated, who were grappling with severe addiction, mental illness or physical disability. They were poor, unhoused, addicted, and marginalized: Chung, at paras. 133-36. Those offenders were also the offenders described in the trial judge’s reasonable hypotheticals.

[75] This court rejected the argument that the analysis in Boudreault applied to the fine in lieu of forfeiture provisions. The court pointed to specific differences in the operation of the two schemes, and to the fundamental difference in the objectives of the two sets of provisions: Chung, at paras. 136-39.

[76] Although the hypotheticals in Chung were not altered to include the “Boudreault” hypotheticals, the arguments focused on the characteristics of “Boudreault” offenders. The conclusion in Chung, that the fine in lieu of forfeiture provisions did not constitute cruel and unusual treatment, was made having regard to offenders who shared the same features as the offenders described in Boudreault, and in the trial judge’s hypotheticals.

[77] Chung decided that the fine in lieu of forfeiture provisions were materially different from the victim surcharge provisions and did not violate s. 12 of the Charter when applied to either offenders like the hypotheticals described in Chung, or offenders like those described in Boudreault and by the trial judge in this case. In short, Chung considered and rejected the substance of the s. 12 arguments accepted by the trial judge. The trial judge was obliged to follow Chung.
. R. v. Abdelrazzaq

In R. v. Abdelrazzaq (Ont CA, 2023) the Court of Appeal describes some Charter s.12 ['cruel and unusual punishment'] doctrine:
[80] For some offenders, like those described by the trial judge in his reasonable hypotheticals, many would regard the imposition of a fine in lieu of forfeiture, particularly a significant fine, to be a harsh and counterproductive order. However, neither of those adjectives describes the test for compliance with s. 12 of the Charter. The test for demonstrating a breach of s. 12 is “very properly stringent and demanding”: Boudreault, at para. 45. The offender must demonstrate that the application of the fine in lieu of forfeiture provisions, in reasonably foreseeable cases, results in treatment that would be grossly disproportionate when compared to an appropriate treatment of the offender. A treatment that is excessive, disproportionate, or unfit, is not necessarily unconstitutional. The treatment must be “abhorrent or intolerable”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14; Boudreault, at para. 45.

[81] The s. 12 analysis requires the courts to consider three factors:
. the purpose of the provision;

. the impact of the provision on the offender; and

. recognized sentencing principles: Chung, at para. 121.
[82] The three-step analysis described above fits most comfortably with a claim that a sentence amounts to cruel and unusual punishment. ...
. R. v. Hills

In R. v. Hills (SCC, 2023) the Supreme Court of Canada considered a mandatory maximum sentencing criminal provision under the Charter s.12 'cruel and unusual treatment or punishment' protection:
A. The Protection Against Cruel and Unusual Punishment Under Section 12 of the Charter

[31] Section 12 of the Charter grants individuals a right not to be subjected to any cruel and unusual treatment or punishment by the state. As a threshold issue, an impugned measure must initially qualify as “treatment” or “punishment” to fall within s. 12. State action amounts to punishment where it: “(1) . . . is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) . . . is imposed in furtherance of the purpose and principles of sentencing, or (3) . . . has a significant impact on an offender’s liberty or security interests” (Bissonnette, at para. 57, citing R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, quoting R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 41). Despite the views of O’Ferrall and Wakeling JJ.A., s. 12 is engaged here. This Court has consistently held that imprisonment, the “penal sanction of last resort”, clearly constitutes punishment (under both ss. 11 and 12 Charter jurisprudence) (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 36; see R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1077; Nur; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 40).

[32] The underlying purpose of s. 12 is “to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals” (Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, at para. 51). Dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect, irrespective of their actions (Bissonnette, at para. 59).

[33] The analytical approach under s. 12 spans many years and has been used to address different types of legal issues. Mandatory minimum sentences have been considered in Smith, R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, Nur, and most recently in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130. A mandatory victim surcharge which applied to all offences was struck down in Boudreault; a mandatory weapons prohibition order was upheld in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; and a sentence of life imprisonment with parole ineligibility of 10 years was upheld in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3.

[34] In Bissonnette, this Court invalidated the stacking of periods of parole ineligibility in cases of multiple murder convictions and reaffirmed and consolidated the well-established analytical approach under s. 12. Chief Justice Wagner, writing for a unanimous Court, emphasized the need for a purposive Charter interpretation which is generous and aimed at securing the full benefits of Charter protections for individuals (para. 98). Based on the purpose of s. 12, he concluded that a sentence that entirely negates the penal objective of rehabilitation violates human dignity and, therefore, contravenes s. 12 in a manner which could not be saved under s. 1 (para. 8).

[35] Bissonnette also confirmed that s. 12 has two prongs that are united by their shared animating purpose of safeguarding human dignity. First, s. 12 protects against the imposition of punishment that is “so excessive as to be incompatible with human dignity” (para. 60). This prong of cruel and unusual punishment is concerned with the severity of a punishment — it queries not whether an impugned punishment is excessive or disproportionate, but whether its effects are grossly disproportionate to the appropriate punishment in a given case (paras. 61 and 68; Nur, at para. 39; Morrisey, at para. 26). Under the first prong, it is not the nature or type of punishment that is at issue, but the amount or quantity of punishment imposed: the focus is whether its particular effects make it grossly disproportionate and thereby constitutionally infirm (Bissonnette, at para. 62).

[36] Second, s. 12 protects against the imposition of punishment and treatment that are cruel and unusual because, by their very nature, they are “intrinsically incompatible with human dignity” (Bissonnette, at para. 60). Under the second prong, the focus is on the method of punishment. The narrow class of punishments that fall within the second category “will ‘always be grossly disproportionate’ because . . . [t]hese punishments are in themselves contrary to human dignity because of their ‘degrading and dehumanizing’ nature” (para. 64, quoting Smith, at p. 1073; 9147-0732 Québec inc., at para. 51).

[37] Mandatory minimum sentences are analyzed under the first prong of s. 12. As their name suggests, Parliament has prescribed a minimum sentence which applies whenever a particular offence has been committed. They are “mandatory” in the sense that Parliament has not provided the safety valve of judicial discretion, exemptions, or escape clauses.

[38] Despite this absence of discretion, mandatory minimum sentence provisions have not been found to be inherently or presumptively unconstitutional. As this Court stated in Smith, “[t]he legislature may . . . provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 of the Charter” (p. 1077; see also p. 1072). Nevertheless, the absence of any discretion, as well as the manner of their operation, expose their constitutional vulnerabilities. Mandatory minimums can “function as a blunt instrument” and “deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range” (Nur, at para. 44). In “extreme cases”, they may impose unjust sentences “because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality” (para. 44). When the effects of the impugned punishment are grossly disproportionate to what would have been appropriate (Smith, at p. 1072), the punishment is cruel and unusual because it shows the “state’s complete disregard for the specific circumstances of the sentenced individual and for the proportionality of the punishment inflicted on them” (Bissonnette, at para. 61).
At para 40-148 the court sets out details of the mandatory maximum sentencing assessment.

. R. v. Hilbach

In R. v. Hilbach (SCC, 2023) the Supreme Court of Canada set out the Charter s.12 analysis of when a mandatory minimum sentence is grossly disproportionate:
[34] Determining whether the mandatory minimum sentences for robbery are grossly disproportionate requires a two-stage inquiry. A court must first determine a fit and proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code (Hills, at para. 40; R. v. Bissonnette, 2022 SCC 23, at para. 63; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 46; Nur, at para. 46). The court must then ask whether the impugned provision requires it to impose a sentence that is grossly disproportionate when compared to the fit and proportionate sentence (Hills, at para. 40; Bissonnette, at para. 63; Nur, at para. 46; Smith, at p. 1072). This two-part assessment may proceed on the basis of either (1) the actual offender before the court, as it will for Mr. Hilbach, or (2) another offender in a reasonably foreseeable case, as proposed by Mr. Zwozdesky (Hills, at para. 41; Bissonnette, at para. 63; Nur, at para. 46).

[35] At both stages of the analysis, courts are called upon to be scrupulous (Hills, at paras. 50-52). Analytical rigour at the first stage, and fixing as specific a sentence as possible, ensures that the comparative exercise at the second stage is not distorted. In some cases, the evaluation of gross disproportionality may be more apparent where the fit sentence fixed at the first stage is not carceral in nature — for example, where it would have involved probation rather than imprisonment as was the case in Hills (para. 156). But the same principled process of comparison applies when comparing terms of imprisonment to determine if and when the length of a carceral sentence becomes grossly disproportionate.

[36] The framework for the second stage of the s. 12 analysis is outlined in the companion case, Hills, beginning at para. 122, and involves consideration of the scope and reach of the offence, the effects on the offender, and the penalty. Either one component alone or the combination of multiple components may lead to a finding of gross disproportionality. Mandatory minimum penalties that capture a range of conduct of varying gravity and differing levels of offender culpability will be constitutionally suspect (Hills, at para. 125; Lloyd, at para. 24; Boudreault, at para. 45; Smith, at p. 1078). The broader the scope of the offence, the more likely the mandatory minimum may prescribe a grossly disproportionate term of imprisonment on conduct that involves low risk to public safety and low moral culpability (Hills, at para. 125; Nur, at para. 83). In these circumstances, the minimum penalty is more likely to capture conduct that is grossly disproportionate.

[37] At the second component, courts must also take into account the impacts that the mandatory minimum may have on the individual offender. This analysis requires an inquiry into how the punishment may affect the actual or reasonably foreseeable offender — both generally and based on their specific characteristics and qualities (Hills, at para. 133). Offender characteristics including Indigeneity, race, gender, age and mental health factors may be relevant to this component (Hills, at para. 135).

[38] The third component requires an analysis of the penalty imposed under the mandatory minimum (Hills, at para. 138). Courts must assess the severity of the sentence imposed and ask whether the prescribed penalty goes beyond what is necessary to achieve Parliament’s sentencing objectives “having regard to the legitimate purposes of punishment and the adequacy of possible alternatives” (Smith, at pp. 1099-1100). Parliament may mandate sentences according to its punishment objectives, including those of denunciation and deterrence, within constitutional limits. However, no individual sentencing objective can be applied to the exclusion of all others (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Rehabilitation must form part of the calculus of all criminal punishment, as a punishment that completely disregards rehabilitation is incompatible with human dignity (Bissonnette, at para. 85; Hills, at para. 141). Courts should examine whether there are alternatives to the mandatory penalty that would also fulfill Parliament’s sentencing objectives. Where a mandatory minimum provides no discretion to impose a sentence other than imprisonment where imprisonment is not required, the penalty will be constitutionally suspect and require careful scrutiny (Hills, at para. 144). All punishment should be considered in light of the principles of parity and proportionality (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 32-33; Hills, at para. 145).
. Quebec (Attorney General) v. 9147-0732 Québec inc.

In Quebec (Attorney General) v. 9147-0732 Québec inc. (SCC, 2020) the Supreme Court of Canada confirmed the (I think obvious) point that corporations were not subject to the Charter's 'cruel and unusual punishment' protections [paras 7-17].


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