The development of section 12 jurisprudence began in 1987 with R. v. Smith. Since that time, any potential refinement of the “cruel and unusual” standard has been distracted by two methodological debates: The scope of “reasonable hypotheticals” and the role of constitutional exemptions. As a result, the jurisprudence has not moved beyond “gross disproportionality” and “outraging standards of decency”. In the process, any room for arbitrariness as a factor has evaporated. A few recent mandatory minimum sentence decisions have breathed some life into section 12 for sentencing purposes. Perhaps more importantly, the concept of arbitrariness has been embedded in section 7 whenever the right to life, liberty or security of the person is in jeopardy. This may provide more traction in mandatory minimum sentence challenges since it requires an analysis that includes identifying the societal interest that the sentence is intended to promote.
"Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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