As Morris and Howard point out, the concern here is not with the narrow matter of illegal and disproportionate penalties: it encompasses a much wider issue. The plaintiffs in McCann suggested that in drafting section 2(b) in 1960, it was improbable that the Canadian Parliament intended to depart from the provisions of international customary law embodied in the Universal Declaration given that Canada was one of the signatories to the declaration.26

The plaintiffs submitted that in interpreting the meaning of section 2(b) it was relevant to look to the developing law in the United States under the Eighth Amendment; not only does it trace a common heritage to the English Bill of Rights but also, as with the Universal Declaration, the American courts have held that the underlying concern of the Eighth Amendment is the protection of human dignity. In other words, in dealing with a concept grounded in history they have not permitted themselves to be imprisoned by that history; rather, they have interpreted the concept so that it reflects an underlying human value similar to that expressed in the Universal Declaration of Human Rights. The plaintiffs submitted that the same underlying value of the protection of human dignity is recited in the preamble to the Bill of Rights and ought to be protected by section 2(b).27

At the time of the McCann case, the leading American case on the Eighth Amendment was Furman v. Georgia,28 which dealt with the constitutionality of the death penalty. Although all nine justices wrote separate opinions, the plaintiffs in McCann argued that the opinion of Brennan J, one of the majority striking down the death penalty, was particularly relevant because it contained a careful review of previous decisions of the Supreme Court and sought to draw from them the principles that had been developed by the court in interpreting the Eighth Amendment. It was the Brennan judgement that commended itself to Mr. Justice McIntyre and heavily influenced his reasoning in Miller and Cockriell

Mr. Justice Brennan, drawing upon the decision of the Supreme Court in Trop v. Dulles,29 saw the unifying principle of the Eighth Amendment in this way:

The basic concept underlying the [clause] is nothing less than the dignity of man While the State has the power to punish, the [clause] stands to assure that this power be exercised within the limits of civilized standards.

At bottom, then, the cruel and unusual punishments clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is 'cruel and unusual' therefore if it does not comport with human dignity.30

Mr. Justice Brennan derived from the jurisprudence of the Supreme Court a set of principles to test whether a challenged punishment comports with human dignity.

The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in th judgment. The infliction of an extremely severe punishment will often entail physical suffering ...Even though 'there may be involved no physical mistreatment, or primitive torture' (Trop v. Dulles), severe mental pain may be inherent in the infliction of a particular punishment.31

In Trop v. Dulles, where the court held that punishment by expatriation violated the Eighth Amendment, the holding was based in part on the conclusion that the punishment inflicted severe mental pain. But, as Mr. Justice Brennan pointed out, it is not just the presence of severe pain that has led American courts to strike down certain punishments.

The barbaric punishments condemned by history, punishments which inflict torture such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like are of course attended with acute pain and suffering. But when we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity.32

A second principle which Mr. Justice Brennan felt to be inherent in the Eighth Amendment is that the state must not arbitrarily inflict a severe punishment: 'This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.'33

Mr. Justice McIntyre in Miller and Cockriell enlarged upon this principle. 'In a civilized community the arbitrary imposition of a severe punishment is abhorrent. Modern concepts of law, morality and decency require that permissible punishment be imposed according to law, according to ascertained or ascertainable standards. and equally upon those who qualify for its infliction.'34

Mr. Justice Brennan identified a third principle: 'a severe punishment must not be unacceptable to a contemporary society... '35 The question is whether there are objective indicators from which a court can conclude that contemporary society considers a severe punishment unacceptable. Accordingly, the court's task is to review the history of a challenged punishment and to examine society's present practices in respect to its use.36

The final principle identified in Mr. Justice Brennan's judgment is that a severe punishment must not be excessive:

Punishment is excessive under this principle, if it is unnecessary. The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive ...Although the determination that a severe punishment is excessive may be grounded in the judgment that it is disproportionate to the crime, the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment.37

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