The meaning of this section was considered in detail in Re Mitchell and R (supra) in relation to the continued detention of habitual criminals after the repeal of that status by Parliament. At the outset, the court determined that such detention was "punishment" notwithstanding that its primary purpose was for the protection of the public, and that in any event, it amounted to "treatment". As to the standard to be applied in determining whether or not such treatment or punishment is cruel and unusual, the court went on to hold that the test was one of disproportionality. In other words, the central question was whether or not the treatment or punishment was disproportionate to the offence and the offender to the extent that it is so excessive as to outrage standards of decency and surpass all rational bounds of treatment or punishment. The court held that evidence that the treatment or punishment is unusually severe and excessive as not serving a valid penal purpose more effectively than less severe treatment or punishment would be sufficient to satisfy that test. Furthermore, evidence of arbitrary imposition of the treatment or punishment, though relevant, was not a prerequisite to a finding of disproportionality where the other factors are present. In the court's view, public opinion should not playa part in the determination. On the facts, the court found that the prisoner's incarceration for approximately 12 years as a result of property offences, was unduly severe, in light of the maximum limits of punishment for serious offences in the Criminal Code. Furthermore, the repeal of the legislation eliminated any general deterrent effect and it was found that individual deterrence had been satisfied by the imprisonment to date. In addition, the court was of the view that the purposes of retribution had been fulfilled and the question of reformation would be made more difficult by further incarceration. There was no evidence that the prisoner's continued detention had been imposed arbitrarily, but on the facts the continued detention for an indefinite period was excessive. Consequently, the court found that the tests for cruel and unusual treatment or punishment had been met and that there was no evidence to justify the infringement of the applicant's rights under s12 of the Charter by resort to s1, reasonable limits. However, this judgment was based on the assumption that the applicant was not dangerous and could not be shown to be a dangerous offender under the new legislation and judgment was reserved pending a further hearing on that issue. On resumption of the matter, the court found that the applicant had shown lack of dangerousness to the public and that he could not be shown to be a danger to society and be found to be a "dangerous offender" and consequently granted the writ of habeas corpus. It is interesting to note that the court put the onus on the applicant to establish, on the balance of probabilities, that he was not dangerous according to the criteria contained in s668 of the Criminal Code pertaining to "dangerous offenders". To meet this burden, the applicant called evidence pertaining to his past record showing lack of violence and psychiatric evidence as to his lack of propensity for violence in the future. It is also of interest to note that the Parole Board reviewed the applicant's case for parole between the first and second hearings in court and continued to deny him parole following the criteria for parole in the Parole Act.

    Allegations of cruel and unusual treatment or punishment were also raised in relation to various practices in a remand facility in the case of Re Maltby (supra). The prisoners complained of limitations on access to recreational and educational facilities, including the use of handcuffs and shackles when prisoners were taken to and from the institution. The court dismissed the application, holding that the limitations imposed on the prisoners were mandated by legitimate security interests of the institution, as well as by the fact that remand prisoners were usually only held in such facilities for a brief period of time. In the court's view, as long as the particular restrictions or conditions were reasonably related to a legitimate government objective, then those conditions or restrictions would not, without more, amount to unconstitutional punishment. If the conditions or restrictions were not reasonably related to such a legitimate objective, then they might amount to a constitutional violation. In the case of the use of handcuffs and shackles, the court held that there was no evidence to show that the practice was used without a valid reason and on the contrary, the evidence indicated that that practice was an extraordinary security measure used sparingly and with care, discretion and judgment. The court held that in the absence of substantial evidence to indicate an exaggeration by prison authorities, the court should defer to their expertise, in relation to policies and practices, that the administrators felt it necessary to preserve order and discipline and security in the institution. Similar issues in relation to remand facilities were raised in the case of Re Soenen and Thomas et al, where the complaints were in relation to contact visits, access to open-air exercise, searches and the manner of being processed on return to the institution. Visual rectal searches were conducted in the detention areas when searching for missing items and approved pesticides were used in processing prisoners on return from court or other facilities. Though the court dismissed the applications, s12 was thoroughly analyzed and a procedure to be followed in making a s12 allegation was suggested. The court held that the proper approach on such an allegation involving pretrial detainees was to determine, first of all, whether the act or conduct complained of amounted to "punishment". If it did, then the court would hold that it was unconstitutional, as punishment may not constitutionally be inflicted upon remand prisoners. If the matters complained of were not "punishment".. the court should go on to determine whether or not the practices amounted to "treatment". In the court's view, the word "treatment" is a broad one that would ordinarily encompass those matters involving pretrial detainees. The next question would involve a determination of whether or not the treatment is "cruel and unusual". If the treatment is either cruel or unusual or both, indicating a violation of s12 rights, then the court should go on to consider the applicability of s1 of the Charter. In other words, it is inappropriate to commence the inquiry by using a balancing approach. A determination as to whether or not rights have been violated must take place first and only if a violation is found, does s1 come into play involving the balancing of individual interests against those of society. Thus, it was this court's view that the principle of disproportionality ought not be applied in determining whether "treatment" is cruel and unusual, but only under s1 if that section is raised. In determining whether or not a matter is cruel and unusual, the court expressed the view that the following matters were relevant: (1) whether or not it is in accord with public standards of decency and propriety; (2) whether it is unnecessary because of the existence of adequate alternatives; (3) and whether or not the treatment can be applied on a rational basis and in accordance with ascertained or ascertainable standards.

    In Cullin and Nadeau v Kaplan and Yoemans, an application was brought on behalf of various prisoners for an injunction to prevent double bunking, alleging it to be cruel and unusual treatment or punishment, contrary to s12 of the Charter. The application was dismissed as only temporary double bunking was proposed and there was no proof that such a practice was cruel and unusual, although the court felt it was not a practice to be recommended. The prisoners attempted to rely on the United Nations Convention setting out the standard minimum rules for the treatment of prisoners which was ratified by Canada in 1955, but the court was not persuaded that it could rely on this convention as a basis for their entitlement to interlocutory injunction. The court did review United States authorities on double bunking and cruel and unusual treatment and relied upon the US Supreme Court decision in Rhodes et al v Kelly Chapman et al which held that five considerations relied upon by the lower courts were insufficient to support the conclusion of the lower courts that "double bunking" amounted to a constitutional violation. The five factors relied upon by the lower courts were, that the prisoners were serving long terms of imprisonment; that the prison housed 38% more prisoners than its capacity; that contemporary standards dictated that a prison inmate should have at least 50 to 55 square feet of living quarters as compared with the 63 square feet which double-bunked prisoners were sharing; a prisoner who is double bunked would spend most of his time in the cell with his cellmate; and that the prison had made double bunking a practice and it was not a temporary condition.

    In Dubois v Sauve (supra) a challenge was made to a decision to transfer a model prisoner to administrative segregation and a special handling unit for policy reasons and it was argued that such detention violated s12. The court held that the modern definition of "cruel and unusual punishment" in penal law goes beyond "barbaric physical punishment" and includes "unnecessary and wanton infliction of pain ...without penalogical justification". The court said that this phrase must be understood in terms of "standards of decency that mark the progress of the maturing society".

    In addition, the court held that the true purpose of the penal function is to "punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law abiding citizens". The application was dismissed on the basis that the prisoner was being treated essentially the same as other prisoners in terms of the cell occupied by him and the schedule of activities and that the isolation factor was being gradually relieved as he progressed through his rehabilitation efforts. On the other hand, in Hay v The National Parole Board (supra) the court arrived at the opposite conclusion on considering the transfer of a model prisoner for policy reasons from a minimum security prison back to a maximum security prison where there was no fault or misconduct on the part of the prisoner. In this case, the court found such treatment to be arbitrary, cruel and unusual and unfair and in violation of s7 of the Charter.

     In Belliveau v The Queen (supra) it was held that the mandatory supervision provisions of the Parole Act involving loss of remission were not outrageous or excessive or beyond the rational bounds of morality, nor excessive or disproportionate and were in accord with Canadian standards of decency and propriety and could be applied on a rational basis in accordance with ascertainable standards and consequently, did not amount to a violation of s12.

    Section 12 of the Charter was considered in Kindler v Minister of Justice of Canada - Unreported, December 20, 1988, No. A-81-87 (FCA). Kindler, a convicted murderer from the United States, sought relief by way of certiorari to prevent the Minister of Justice from surrendering him to the United States authorities without first seeking an assurance that the death penalty would not be used against him as provided for in Article 6 of the Extradition Treaty between Canada and the U.S. His application was dismissed and he appealed.

    Marceau J in dismissing the appeal, based his decision on two propositions. The first being that capital punishment is not inevitably cruel and unusual punishment within the meaning of s12 of the Charter. The second proposition being that the Minister would only be required to seek and obtain assurances under s6 of the Treaty if the death penalty was per se a cruel and unusual punishment within the meaning of the Charter.

    His Lordship concluded that:

"...for the Court to intervene, it does not suffice that the situation facing the fugitive in his country would not be in full accordance with the prescriptions of the Charter as we have come to see them in this country. It would be necessary that the situation "sufficiently shocks the conscience" (Schmidt v The Queen, [1987] 1 SCR 500 at 522), and be "simply unacceptable" (USA v Allard, [1987] 1 SCR 564 at 572), regardless of the Canadian context." (p6)

     And stated that:

"The punishment or treatment to which a fugitive is likely to be subjected, if returned to his country, may force the Minister to refuse to surrender him only if that punishment or treatment is one which is inherently and absolutely contrary to s12 of the Charter, torture being the easiest example. Otherwise, since the influence of the Canadian context is directly involved or an assessment of the circumstances of the foreign country is required, it should remain a question of executive discretion with which the courts ought not to intervene." (p6-7)

     In concurring reasons Pratte J said that it is common ground that the decision to surrender a fugitive must conform to the requirements of the Charter. But, he then held that s7 of the Charter does not prevent persons who face the death penalty from being extradited because a person can be deprived of the "right to life" so long as it is in accordance with the principles of fundamental justice. The deprivation of life is not in itself contrary to fundamental justice.

    Pratte J then said:

"...I find it impossible to say that the death penalty is, in itself, a cruel and unusual punishment that is forbidden by s12 of the Charter when s7 of that same Charter expressly permits that a person be deprived of the right to life in accordance with the principles of fundamental justice."

    In dissenting reasons Hugessen J held that:

"...it is quite simply unthinkable that any Canadian court or government could countenance the extradition of any criminal, no matter how heinous his crime, to suffer torture at the hands of a foreign state.

A foreign punishment or treatment which falls within the proscription of s12 by being cruel and unusual creates a situation which, in the words of the quoted passage from Allard, is "simply unacceptable" to Canadians." (p6)

    Hugessen J then considered the cruel and unusual punishment issue. After citing with approval the dissent of Mcintyre JA (as he then was) in R v Miller and Cockriell 63 DLR (3d) 193 (BCCA), His Lordship said:

"Capital punishment is founded on no recognized sentencing principle and, since there is a valid, workable and acceptable alternative, is grossly disproportionate." (p12)

    Capital punishment being contrary to s12 of the Charter could not be justified under s1. Hugesson J concluded:

"...that capital punishment is cruel and unusual within the meaning of s12 of the Charter. For the Minister to surrender the appellant to suffer the death penalty at the hands of the American authorities would be simply unacceptable under our Constitution. That being so, the Minister has no discretion and no choice but to seek and obtain assurances under article 6 of the Treaty as a condition of surrendering the appellant." (p16)