Section 12: Cruel Treatment or Punishment

Meaning

This section of the Charter is to make sure that cruel and unusual punishment is never the way to punish or treat people. This right is protected for everybody in Canada. For example, somebody can be sent to prison but not executed for committing a crime. This also means that people can’t be legally tortured in Canada. Everybody is protected from this, even if they are not citizens. This also applies to how a person is treated during their trial and their arrest.

Limitations

The right to not be subjected to cruel and unusual treatment or punishment is the one right that some judges say can never be limited. But there are times when someone is dangerous and is to be treated differently because they are a threat to people around them. For example, when they are arresting someone, the police still have to do their job and make sure someone is handcuffed if they are a threat to other people, even if the crime was not serious, like stealing some gum. If someone is threatening to hurt someone or kill them, they might be treated differently so that no one else gets hurt.

R v Smickle, 2002 ONSC

Here is a case related to section 12. In this case the defendant, Leroy Smickle, was charged with possession of an illegal handgun. The gun didn’t belong to him, but it was his cousin’s gun. He was in his cousin’s house, holding the handgun and taking pictures of himself with it when the police entered the house just before 2:00am on March 9, 2009. Leroy Smickle was engaged in a very foolish act, but there was no evidence he was committing any other crime. He had no criminal record.

The problem was that the law said that the judge had to give Mr. Smickle a sentence of at least 3 years in prison (called a mandatory minimum sentence) because he committed a crime that involved a gun, even though his actual crime of just holding the loaded gun was not serious enough to deserve this punishment. The judge decided that putting Smickle in jail for 3 years would be against section 12 of the Charter. Instead, he was given of a sentence of one year conditional sentence to be served in the community.