location: publications / books / Prisoners of Isolation: Solitary Confinement in Canada / Chapter 4 McCann v. The Queen: The Structure of the Legal Argument / Cruel and Unusual Punishment ot Treatment

Having identified the four principles, Mr. Justice Brennan went on to explain their interrelationship.

These are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual.' The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not by its severity be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous, punishment of the type that the clause has always prohibited. Yet it is unlikely that any State at this moment in history would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such punishment. Nor finally, is it likely that this Court would have to consider a severe punishment that is patently unnecessary. No State today would inflict a severe punishment knowing that there was no reason whatsoever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under anyone principle.38

After reviewing the punishments that the court had held to be within the prohibition of the clause (twelve years in chains at hard and painful labour, Weems v. United States;39 expatriation, Trop v. Duties; and
imprisonment for being addicted to narcotics, Robinson v. California40), Mr. Justice Brennan continued:

Each punishment. of course. was degrading to human dignity. but of none could it be said conclusively that it was fatally offensive under one or the other of the principles. Rather, these 'cruel and unusual punishments' seriously implicated several of the principles. and it was the application of the principles in combination that supported the judgment. That. indeed. is not surprising. The function of these principles. after all, is simply to provide means by which a Court can determine whether a challenged punishment comports with human dignity. They are. therefore. interrelated. and in most cases it will be their convergence that will justify the conclusion that a punishment is 'cruel and unusual.' The test. then. will ordinarily be a cumulative one. If a punishment is unusually severe. if there is a strong probability that it is inflicted arbitrarily. if it is substantially rejected by contemporary society. and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment. then the continued infliction of that punishment violates the command of the clause that the State may not inflict inhuman or uncivilized punishments upon those convicted of crimes.41

In the Miller and Cockriell case, Mr. Justice McIntyre, in his review of the standards which he felt were appropriate to the application of section 2(b) of the Bill of Rights, formulated this restatement of the Brennan tests.

It would not be permissible to impose a punishment which has no value in the sense that it does not protect society by deterring criminal behaviour or serve some other social purpose. A punishment failing to have these attributes would surely be cruel and unusual if it is not in accord with public standards of decency and propriety, if it is unnecessary because of the existence of adequate alternatives, if it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards, and if it is excessive and out of proportion to the crimes it seeks to restrain.42

In the American cases on the Eighth Amendment the cruelty of the punishment rather than its unusualness is the principal criterion by which its propriety is judged. The courts have declined to give the word 'unusual' a restricted meaning. In Furman v. Georgia, Mr. Justice Marshall noted that the original draft of the English Bill of Rights referred to 'illegal' and 'cruel' punishments. Adopting the reasoning of Anthony Granucci,43 he suggested that the use of the word 'unusual' in the final version must be attributed simply to chance and sloppy draftsmanship. Chief Justice Burger, who dissented on the issue of whether the death penalty came within the prohibition of the Eighth Amendment, agreed that 'the term "unusual" cannot be read as limiting the ban on cruel punishments or somehow expanding the meaning of the word "cruel."'44 In Trop v. Dulles, Chief Justice Warren clearly indicated that the approach of the Supreme Court was to examine 'the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word "unusual." '45

In Miller and Cockriell, Mr. Justice McIntyre, after referring to the scholarly literature and the American case law, concluded:

It is permissible and preferable to read the words 'cruel' and 'unusual' in section 2(b) of the Bill of Rights disjunctively so that cruel punishments, however usual in the ordinary sense of the term, could come within the proscription. The term 'unusual' refers in my view not simply to infrequency of imposition ...but to punishments unusual in the sense that they are not clearly authorized by law, not known in penal practice or not acceptable by community standards.46

The majority of the Court of Appeal in Miller and Cockriell preferred a conjunctive interpretation, wherein a punishment must be both cruel and unusual, and, 'assuming for the sake of the argument that hanging is cruel punishment,' concluded that it was not unusual. The court gave several reasons for its conclusion. First, death as a punishment for murder is not unusual in the ordinary and natural meaning of the word; in England from time immemorial murder was punishable by death, and had been so in Canada before and since Confederation, despite the fact that as a result of executive clemency no death sentences had been carried out in recent years. Second, Parliament must have thought in 1973 (when the capital- murder provisions being challenged were introduced) that the death penalty for murder was not an unusual punishment and that there was therefore no need to use the words 'shall operate notwithstanding the Canadian Bill of Rights.'47 A further line of reasoning adopted by the majority was that even if Parliament thought that the punishment was an unusual one, it nevertheless wished it to be the punishment for murder by enacting the provisions of the Criminal Code in 1973; therefore these provisions impliedly repealed section 2(b) or excluded it from applying to the death penalty.48

Page 4 of 6