Ontario Criminal


Charter of Rights

CRUEL AND UNUSUAL TREATMENT OR PUNISHMENT
Section 745.51 of Criminal Code did not contravene ss. 12 and 7 of Charter

Accused was convicted of two counts of second degree murder. Accused applied for constitutional declaration that s. 745.51 of Criminal Code was null and void because it contravened ss. 12 and 7 of Charter. Application dismissed. Judicial power to impose consecutive periods of parole ineligibility for subsequent murder or murders was discretionary, not mandatory. Judge’s order as to parole ineligibility for multiple murders had to be guided by fundamental principle that sentence had to be proportionate to gravity of offence and degree of responsibility of offender, as well as principle of totality. Assuming that parole ineligibility order was fit and just, by definition, it could not constitute cruel and unusual punishment, which required that order be grossly disproportionate to particular circumstances of offence and offender. It was open to Parliament to arm judiciary with discretionary power to impose consecutive periods of parole ineligibility for multiple murders beyond period of twenty-five years of imprisonment in cases where circumstances of offences and offender merited enhanced period of parole ineligibility. Number of murdered victims was most relevant factor in determining what was fit and just length of imprisonment prior to right to have parole hearing. Issue before court was not whether Parliament made wise policy choice in investing discretionary power with judiciary, but whether legislative provision passed constitutional muster. If order of parole ineligibility for multiple murders was unduly long or harsh, it would have constituted error in sentencing principle subject to correction by appellate court. It was undoubted that period of forty years of parole ineligibility sought by Crown would not have constituted cruel and unusual punishment. Accused had criminal record, was long-time drug dealer, and was facilitator of illegal handguns. Accused executed two victims in discharging 14 shots at them in crowded public food court, and wounded four other victims, including young teenager shot in head. Accused failed to establish s. 12 Charter breach. Question fell to be determined under s. 12 of Charter, which dealt specifically with cruel and unusual punishment, real constitutional issue at hearing, whereas s. 7 of Charter was general provision. Accused failed to establish s. 7 Charter breach.

R. v. Husbands (Apr. 16, 2015, Ont. S.C.J., Ewaschuk J., File No. null) 122 W.C.B. (2d) 21.

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