“OVER THE HILLS: SECTION 12 OF THE CHARTER AT 40”

Abstract

The longstanding framework for determining whether state conduct subjects an individual to cruel and unusual treatment or punishment contrary to section 12 of the Charter was recently challenged in R v Hills and R v Hilbach. While the Supreme Court defended its core jurisprudence, it also endeavoured ‘to provide greater clarity and more guidance’ for future challenges under the ‘severity’ track of section 12. While this afforded the Court an opportunity to take stock, several controversial features of its jurisprudence were left untouched. Three in particular warrant further consideration: (i) revising how courts should determine the ‘low end’ of the sentencing range when assessing whether a law meets the gross disproportionality standard; (ii) abandoning use of an existing case resulting in grossly disproportionate punishment where the case is considered ‘marginal’ and therefore would not qualify as a ‘reasonable hypothetical’; and (iii) the Court’s inconsistent reasons for including general deterrence as a factor when considering whether a mandatory minimum sentence is consistent with section 12 of the Charter.