Tuesday, May 11, 2021
Colton Fehr (Simon Fraser University) has posted Tying Down the Tracks: Severity, Method, and the Text of Section 12 of the Charter ((2020) 25 Canadian Criminal Law Review 235) on SSRN. Here is the abstract:
Recent jurisprudence and academic commentary recognize two different ‘tracks’ for violating section 12 of the Charter. The severity track was developed in the Court’s jurisprudence considering the constitutionality of a host of mandatory minimum sentencing provisions. When assessing the constitutionality of such laws, the Court may consider the mandatory minimum sentence a hypothetical offender would receive and ask whether that penalty is grossly disproportionate when compared to the appropriate sentence for that offender. The methods track considers whether the means used to punish a person are cruel and unusual. Although the distinction between each track brings welcome analytical clarity, a more basic question remains: are both tracks supported by the text of section 12 of the Charter? In R v Hills, Justice Wakeling answered this question in the negative with respect to the severity track. I contend that his argument relies upon an unduly narrow interpretation of the text and purpose of the right not to be subjected to cruel and unusual treatment or punishment.