The late Antonio Lamer took the lead, under the Charter, in constitutionalizing the substantive criminal law. In that regard, the Motor Vehicle Reference may be his most important Charter decision: the re, he proposed an institutional the ory of substantive review for section 7 — a guarantee which, it is agreed, was intended only to have procedural content. Not only was Justice Lamer’s the ory of review unsound, the section 7 fault jurisprudence which followed the MVR was no more than a modest success. Yet analysis shows how the section 7 cases are linked to section 12 — and its prohibition on cruel and unusual treatment or punishment — by a shared concern for proportionality in the relationship between fault and punishment. After undertaking a critique of the section 7 jurisprudence, this paper proposes that a substantive interpretation of that guarantee be abandoned, and suggests that questions of proportionality — whether arising from a fault deficit or the nature of the punishment — be addressed by section 12.
"Fault and Punishment under Sections 7 and 12 of the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.