Consolidated Grounds in the Immigration and Refugee Protection Act: Persons in Need of Protection - Risk to Life or Risk of Cruel and Unusual Treatment or Punishment

3.1.1. Generally

It should be pointed out that there are two elements that are not required, one is that the risk be connected to a refugee Convention ground, and the other is that the risk be at the hands of a state agent (as is the case for the danger of torture ground). Also, s. 97(1)(b) is not intended for granting protection on the basis of compassionate and humanitarian grounds.

As will be seen, the elements required to establish that a person is in need of protection are extensive and appear to be intended to restrict the benefit of this category of protection to a narrow class of individuals.

The elements of the definition of a person in need of protection under s. 97(1)(b) mirror to some extent the language in the PDRCC Regulations.^{Note 5} Therefore it might be helpful in discussing the possible interpretations of these elements to refer to the PDRCC Guidelines and case law on the PDRCC Regulations.^{Note 6} The PDRCC approach is by no means binding on the IRB but to the extent that the task is similar, the CIC guidelines for risk assessment which are contained in the PDRCC Manual may be of some assistance in interpreting the legislation. Federal Court jurisprudence interpreting terms found in both the PRDCC Regulations and s. 97(1)(b) is of course binding.^{Note 7}

3.1.2. Country of Reference (Nationality or Former Habitual Residence)

This element is common to all grounds for refugee protection. Section 97(1) makes it clear that the person claiming to be in need of protection will need to establish a risk in the person's country or countries of nationality. The requirement that the risk be present in all countries of nationality is parallel to the requirement in the definition of Convention refugee (s. 96(a)). The provision goes on to establish that if there is no country or countries of nationality, the risk must be present in the country of former habitual reference. Like the definition of Convention refugee, the section does not speak of multiple countries of former habitual residence.

Notwithstanding this anomaly in drafting, it is suggested that it is logical to interpret the provision as requiring proof that the risk exists in all countries of former habitual residence to which the claimant can return. This interpretation is consistent with Thabet,^{Note 8} a decision of the Federal court of Appeal interpreting a similar provision in the definition of Convention refugee:

In order to be found a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her countries of former habitual residence.

Therefore, if a stateless person has multiple countries of former habitual residence, the claim for protection may be established by reference to any such country. However, if the claimant is able to return to any other country of former habitual residence, the claimant must, in order to establish the claim for protection, also demonstrate that he or she faces a risk there.^{Note 9}

3.1.3. The Risk Must Be to Life or of Cruel and Unusual Treatment or Punishment

The terms "risk to life" and "risk of cruel and unusual treatment or punishment" are not defined in the legislation. Their meaning will have to be determined by the RPD and the RAD based on Canadian and international law. This element is extensively explored later on in the paper, where reference is made to interpretations under the Canadian Charter of Rights and Freedoms^{Note 10} (the Charter), PDRCC, and international law.

3.1.4. Personal Risk

This element is common to the claims for protection based on danger of torture and on risks to life, or of cruel and unusual treatment or punishment. Section 97 requires that the risk faced by a person if removed to his or her country of nationality or former habitual residence be a risk to which the person would be subjected personally. The phrase "would subject them personally" indicates that the risk is assessed prospectively.

A person may be at risk without necessarily being personally targeted. The risk may be assessed by considering the risk faced by similarly situated persons. For instance, a risk will be personal if the claimant has a certain political profile, is of a particular ethnicity or belongs to a professional or social group if the evidence discloses that persons with those characteristics are at risk. In fact, the phrase "would subject them personally" requires no greater evidentiary burden of personal risk than establishing that a claimant faces a well-founded fear of persecution.

While interpreting different language in the PDRCC Regulations, the Federal Court has stated that the Post-determination Claims Officer ("PDCO") requires evidence that the particular applicants face an "objectively identifiable risk" and not simply evidence that some individuals, should they be returned to that country, face an objectively identifiable risk. It would exclude, however, those who face a risk which would apply to all residents of a country such as random violence or natural disaster.

In risk to life claims, the requirement of personal risk overlaps to some extent with the further requirement that the risk not be faced generally by other individuals in the country (see below, section 3.1.6.) but the concepts are not identical. An example may serve to clarify the distinction: a claimant facing a risk to life because of a natural disaster may face a personal risk but if the risk is faced by all citizens generally, the claimant will not benefit from protection even though his or her personal risk is serious and credible.

3.1.5. No State Protection Available

The requirement that there be no state protection appears to be parallel to the requirement under the Convention refugee definition. The interpretation given by the Supreme Court of Canada in Ward^{Note 11} should assist the RPD and the RAD in determining this question. The following principles from Ward apply:

• Nations should be presumed capable of protecting their citizens.
• To rebut this presumption, a claimant would have to present "clear and convincing" evidence that protection would not be reasonably forthcoming.^{Note 12}

3.1.6. Risk Faced in Every Part of Country (No IFA)

In order to be a person in need of protection the risk of harm (to life or of cruel and unusual treatment or punishment) must extend to every part of the country. In other words, if an IFA exists in that country, the claimant is not a person in need of protection. The issue of IFA has been extensively interpreted by the Federal Court in the context of refugee cases. However, the two-pronged IFA test as developed by the courts would likely not be the same test applied by the RPD and the RAD to persons in need of protection. Section 97(1)(b)(ii) speaks only of a risk faced by the person in every part of the country. It does not add a reasonableness element to the availability of a safe area in the country.

There are two possible interpretations one can give to the IFA test under s. 97(1)(b). The first and preferable one would exclude the reasonableness prong, except for the issue of accessibility to the IFA. Under this approach, the test would be formulated as follows:

• If the evidence discloses that the risk faced by the claimant is limited to part of the country, the RPD and the RAD will need to assess whether there are other parts of the country, reasonably accessible by the claimant, where the claimant would not face a serious possibility of a risk to life or of cruel and unusual treatment or punishment.^{Note 13}

The main reason why this approach is preferable is that it is consistent with the language in s. 97(1)(b) which does not import the reasonableness prong. It is also easy to apply in that each part of the country is assessed based on the same test of whether the claimant faces a risk to life or of cruel and unusual treatment or punishment there. The main difficulty with this approach is that the test is not consistent with the IFA test for the Convention refugee and danger of torture grounds and may lead to inconsistent results depending on which ground of protection is applied (particularly if the lack of medical care in the putative IFA is a factor or there is a natural disaster affecting the whole of the country).

The second approach would be to use the same two-prong IFA test as used in refugee claims, restated as follows:

• If the risk faced by the claimant is limited to part of the country, the RPD and the RAD will need to assess whether there are other parts of the country (i) where the claimant would not face a serious possibility of risk to life or of cruel and unusual treatment or punishment; and (ii) where it is not unreasonable, in all the circumstances, for the claimant to seek refugee.

This approach, while consistent with the IFA approach for Convention refugee and danger of torture grounds and with the PDRCC Manual^{Note 14} is difficult to reconcile with the explicit restrictions in s. 97(1)(b) (ii) and (iv), namely that the risk not be faced generally by others in that country, and that the risk not be caused by inadequate health or medical care. These two restrictions would have to be read out of the test in order for it to be consistent with the statutory language.

The risk that gives rise to the claimant's original need for protection need not be the same risk faced by the claimant in the IFA region. The IFA will be assessed for any risk to life or risk of cruel and unusual treatment or punishment as long as it is not a risk faced generally by others and is not related to inadequate health care.

There are two other issues that need consideration:

3.1.7. Risk Not Faced Generally

If the risk faced by a person stems from a general risk in that country, the person is not protected under section 97(1)(b). Protection is limited to those who face a specific risk not faced generally by others in the country. There must be some particularization of the risk to the person claiming protection as opposed to an indiscriminate or random risk faced by the claimant and others.

A claim based on natural catastrophes such as drought, famine, earthquakes, etc. will not satisfy the definition as the risk is generalized.^{Note 15} However, claims based on personal threats, vendettas, etc. may be able to satisfy the definition (provided that all the elements of s. 97(1)(b) are met) as the risk is not indiscriminate or random.

In a civil war situation a claimant would be required to adduce some evidence that the risk faced is not an indiscriminate risk faced generally in that country, but linked to a particular characteristic or status. In a refugee claim, a claimant fleeing a situation of civil war may be able to establish a claim where the risk of persecution is not individualized but is group-based harm that is distinguishable from the general dangers of civil war. There is a requirement of some targeting although the targeted group can be large and there can be several opposing targeted groups. Similarly, the PDRCC Guidelines did not require individualized targeting, but would exclude victims of random violence in a civil war situation if all residents were subject to that random violence. This approach to risk arising from civil war is consistent with the IRB's Chairperson's Civil War Guidelines^{Note 16} and appears to be consistent with the intent of s. 97(1)(b)(ii).

Therefore, individuals who face a serious and credible risk may not be able to benefit from protection under s. 97(1)(b) as long as the risk is faced generally by citizens in that country irrespective of their personal characteristics or status.

3.1.8. Risk Not Inherent or Incidental to Lawful Sanctions

A claimant is not a person in need of protection if the risk faced is inherent or incidental to lawful sanctions. The lawful sanctions, however, cannot be imposed in disregard of accepted international standards. This will require RPD and RAD members to engage in an analysis of lawful punishments which may nonetheless offend international norms,^{Note 17} having regard to s. 3(3)(f) which directs that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.

Even though the PDRCC regulations do not exclude from its definition of risk to life risks that are inherent to lawful sanctions (as does s. 97(1)(b)(iii)), the Guidelines refer to persons who have violated the law or the social rules in their own society. It notes that those persons may face a possible risk of a legally sanctioned severe punishment or death penalty through the judicial system in the country of origin. The test used is whether the possible sanction would shock the conscience of Canadians. An example is given that if a death penalty has been imposed on a person, the penalty would have to be examined to see if, in the circumstances of the individual, it violates international treaties. An examination would be made of the gravity of the offence, the legal safeguards in that country and the proposed methods of execution. A similar approach would have to be taken under s. 97(1)(b), since the exception set out in s. 97(1)(b)(iii) directs that international standards be used in evaluating whether a sanction is lawful.

3.1.9. Risk Not Due to Inadequate Health or Medical Care

If the risk is caused by the inability of the country of reference to provide adequate health or medical care the claimant will not qualify for protection. A similar requirement in the PRDCC Regulations was explained in the PDRCC Guidelines as reflecting the position that the Regulations were never intended to compensate for disparities between the health and medical care available in Canada and those available elsewhere in the world.^{Note 18} The same could be said of s. 97(1)(b)(iv).

The inability of a country to provide adequate health or medical care generally can be distinguished from those situations where adequate health or medical care is provided to some individuals but not to others. The individuals who are denied treatment may be able to establish a claim under s. 97(1)(b) because in their case, their risk arises from the country's unwillingness to provide them with adequate care. These types of situations may also succeed under the refugee ground if the risk is associated with one of the Convention reasons.

Care must be taken in analyzing a claim where the risk arises, not because of the lack of health care, but because the person has a medical condition that will make him or her more vulnerable to the unstable conditions in his or her country. This was the situation in Ahmed,^{Note 19} where the applicant under PDRCC suffered from schizophrenia. He had no family or support in his country and this made him, given his condition, very vulnerable due to the instability in Somalia. The PDCO was directed by the Federal Court to assess the risk to the applicant's life in light of his medical condition and not from the perspective of lack of availability of adequate medical care.

3.1.10. Conclusion

The scope of s. 97(1)(b) appears to be very narrow. Who exactly will benefit from a determination under s. 97(1)(b) remains to be determined but it seems that the provision will benefit mainly those claimants who are unable to establish a nexus to the Convention refugee definition and who face a risk which is not generalized or due to inadequate health or medical care. Section 97(1)(b) does not appear to broaden the scope of coverage of claims arising out of civil war situations. Likewise, persons who may have an IFA available to them do not appear to benefit from a more liberal interpretation of that concept under s. 97(1)(b) than exists under Canadian jurisprudence for Convention refugees. Lastly, s. 97(1)(b) is not intended to grant protection on the basis of humanitarian and compassionate grounds.

4.2.1 Rules of Interpretation for International Law

Traditionally, Canadian courts tended to adjudicate cases on the basis of domestic law only. With the advent of the Charter in 1982, reference to international sources has become commonplace. This is a logical development since most of the rights and freedoms protected in the Charter are also contained in international human rights instruments.^{Note 30}

The rules of interpretation relating to international law are complex but generally, there is a common law presumption that Canada's laws are enacted with the intention of giving force to Canada's international obligations.

The recognition of Canada's international obligations with respect to persons who need protection because of violations of their human rights is an important feature of the IRPA. As stated in the legislation,

3. (3) This Act is to be construed and applied in a manner that

(f) complies with international human rights instruments to which Canada is a signatory.

The role of international instruments and jurisprudence in the interpretation of specific provisions is governed by the following general principles:

• A provision in an international instrument does not have the force of law in Canada unless it is explicitly incorporated in domestic law.^{Note 31}
• Canadian law should be interpreted, as far as possible, consistently with international law.
• If the meaning of a provision in the domestic law is clear and unambiguous, the provision should be interpreted according to domestic law.
• If the meaning of a provision in the domestic law is ambiguous, Canadian courts and tribunals can have regard to similar provisions in international instruments.
• The interpretation given by foreign jurisdictions or international tribunals to provisions in international instruments or other domestic laws is not binding but is useful and can have persuasive value.
• The values reflected in international human rights law may help inform the contextual approach to statutory interpretation.

The Supreme Court of Canada, in Baker,^{Note 32} dealt with the role of international law in determining the issue of the best interests of children in the context of the humanitarian and compassionate application made by their mother. The following comments of the majority are instructive with regards to the role of international instruments in interpreting human rights. The contextual approach espoused by the Court should be followed by the RPD and the RAD when assessing the issue of whether the risk faced by an individual constitutes a risk of persecution, torture, or cruel and unusual treatment or punishment.

[69] Another indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision is the ratification by Canada of the Convention on the Rights of the Child, and the recognition of the importance of children's rights and the best interests of children in other international instruments ratified by Canada. International treaties andconventions are not part of Canadian law unless they have been implemented by statute: Francis v. The Queen, [1956] S.C.R. 618, at p. 621; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, at pp. 172-73. I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law.

[70] Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis in bold added.]

The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight Communications, supra; R. v. Keegstra, [1990] 3 S.C.R. 697. [Emphasis added]

[71] The values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. In addition, the preamble, recalling the Universal Declaration of Human Rights, recognizes that "childhood is entitled to special care and assistance". A similar emphasis on the importance of placing considerable value on the protection of children and their needs and interests is also contained in other international instruments. The United Nations Declaration of the Rights of the Child (1959), in its preamble, states that the child "needs special safeguards and care". The principles of the Convention and other international instruments place special importance on protections for children and childhood, and on particular consideration of their interests, needs, and rights. They help show the values that are central in determining whether this decision was a reasonable exercise of the H & C power.

The RPD and the RAD will have the task of determining what constitutes a risk to life or a risk of cruel and unusual treatment or punishment. "Risk to life" has no qualifiers, however, "treatment or punishment" is qualified by the terms "cruel and unusual". These qualifiers are not defined in the legislation and therefore, their meaning will need to be interpreted. By way of analogy, the term "persecution" in the definition of Convention refugee is similarly not defined.

In determining the meaning of the words "cruel and unusual", the RPD and the RAD will have to have regard to the interpretation given to those terms in Canadian and international jurisprudence. It should be noted that in the immigration context, those terms have not been interpreted vis--vis the actions of foreign states or non-state actors as the words used in previous risk assessment regimes were not the same (the PRDCC Regulations referred to "extreme sanctions" and "inhumane treatment"^{Note 33}). The words do appear in the Canadian Bill of Rights and the Charter and therefore, Canadian cases interpreting these statutes will be of utmost importance. We should note, however, that many of the cases deal with actions of the Canadian state (the cases that do deal with the actions of other states involve extradition requests) and therefore, their applicability must be assessed carefully. International jurisprudence interpreting similar provisions in international instruments will also assist in accordance with the general principles of interpretation outlined above. And of course, as noted in Baker, international human rights instruments are important in that the values reflected in them help inform the contextual approach to statutory interpretation.

The following sections will examine the sources of interpretation that may assist the RPD and the RAD in assessing the risk grounds under s. 97(1)(b).

4.3.1. Federal Court Jurisprudence on PDRCC

Federal Court decisions reviewing PDRCC determinations may shed some light on possible interpretations of risk to life and cruel and unusual treatment or punishment. Extortion by criminal elements^{Note 35} and serious mistreatment during a criminal investigation (in Iran)^{Note 36} have been found to be proper circumstances for consideration under PDRCC. Non-draconian penalties for refusal to serve in the army^{Note 37} and a sentence of six months to five years for draft evasion^{Note 38} were not considered extreme sanctions or inhumane treatment. Incidents of harassment and discrimination were found not to amount to inhumane treatment.^{Note 39} Risks associated with arbitrary incarceration (Tamils in Sri Lanka) may lead to a finding of risk to life or risk of extreme sanctions or inhumane treatment.^{Note 40} More generally, the Sinnappu^{Note 41} case includes a thorough review of the entire PDRCC process based on evidence provided by immigration officials.

4.4.1. Cruel and Unusual Punishment

The governing principles^{Note 42} to interpret whether a certain punishment offends s. 12 of the Charter come from the Supreme Court of Canada decision in R. v. Smith.^{Note 43} The standard to be applied in determining whether punishment is cruel and unusual is whether the punishment is so excessive as to outrage standards of decency and surpass all rational bounds of punishment. The test is one of proportionality: is the punishment disproportionate to the offence and the offender? Put another way, is the punishment grossly disproportionate to the inherent seriousness of the offence. (The issue before the Court in Smith was whether the mandatory minimum sentence of seven years for drug trafficking contravened s. 12. The majority held that it did.)

4.4.2. Cruel and Unusual Treatment

Soenen v. Thomas,^{Note 44} the Alberta Queen's Bench was of the view that the principle of proportionality which has been applied in determining whether punishment is cruel and unusual has no application to the issue of whether treatment is cruel and unusual. The factors that are relevant in determining whether treatment is cruel and unusual include: whether the treatment is in accord with public standards of decency and propriety; whether is it unnecessary because of the existence of adequate alternatives; and whether or not the treatment can be applied upon a rational basis and in accordance with ascertained or ascertainable standards. (The issue before the Court in this case was whether limitations on visiting privileges, access to open-air exercise, and search and processing methods in pre-trial custody constituted cruel and unusual treatment. The Court held that they did not.)

4.4.3. Cruel and Unusual: Conjunctive Terms?

As to whether the terms "cruel and unusual" should be interpreted as being conjunctive (i.e., the punishment or treatment must be both cruel and unusual), the majority of the Supreme Court of Canada in R. v. Miller and Cockriell^{Note 45} (interpreting the words in the Bill of Rights) concluded that the phrase should be so interpreted. In a concurring judgement, Laskin C.J.C would have adopted a more flexible approach and interpret the words as interacting expressions colouring each other. Laskin's approach appears to have been followed in a number of subsequent cases, at least by some judges, including judges of the Supreme Court of Canada. See for example the judgement of Lamer J.J. (Dickson C.J. concurring) in R. v. Smith.^{Note 46}

4.4.4. General Criteria Arising From Canadian Jurisprudence

Mr. Justice Lamer in R. v. Smith^{Note 47} pointed out that little had been said by the Courts interpreting s. 2(b) of the Bill of Rights about the meaning of cruel and unusual punishment or treatment. However, some guidance could be discerned from a minority of judges. He indicated that the criteria had been usefully synthesized by Professor Tarnopolsky in an article entitled "Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?",^{Note 48} as follows:

• Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim?
• Is it unnecessary because there are adequate alternatives?
• Is it unnecessary to a large segment of the population?
• Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards?
• Is it arbitrarily imposed?
• Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution?
• Is it in accord with public standards of decency or propriety?
• Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness?
• Is it unusually severe and hence degrading to human dignity and worth?

4.4.5. Deportation

A number of cases interpreting s. 2(b) of the Bill of Rights or s. 12 of the Charter have arisen in the immigration context. The issues usually involve removal from Canada, delays in processing applications, security certificates and danger opinions. Essentially, the cases deal with acts of the Canadian government and the Courts have tended to analyze the cases from that perspective. Accordingly, there is not much guidance with respect to what acts of foreign states (or non-State parties) may constitute cruel and unusual punishment or treatment. The case law is also still evolving. A limited sample of cases include:

• Deportation was held not to be cruel and unusual punishment in Re Gittens and the Queen^{Note 49} where the Federal Court preferred the approach followed by Laskin in Miller and Cockriell.^{Note 50}
• The Supreme Court of Canada, in Chiarelli,^{Note 51} agreed that deportation of a permanent resident is not imposed as a punishment and that assuming it is treatment, it is not cruel and unusual. The deportation of a permanent resident who has deliberately violated an essential condition of being permitted to remain in Canada by committing a serious criminal offence cannot be said to outrage standards of decency. The same conclusion was reached in Canepa,^{Note 52} although the Court noted that the issue appeared to be still open with respect to "treatment".
• As to whether deportation of a Convention refugee violates s. 12 of the Charter, the Federal Court in Barrera,^{Note 53}concluded that the issue was still open but that in the particular case, the issue was premature because the appellant was not attacking the correct decision-maker, namely the Minister, but the Appeal Division of the IRB.
• In Nguyen,^{Note 54} Mr. Justice Marceau, in obiter said the following:

  It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of s. 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under s. 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.

• In Suresh,^{Note 55} the Supreme Court of Canada considered the issue of deportation to torture. It noted that the Charter affirms Canada's opposition to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. The Court went on to consider whether deportation to torture would violate fundamental justice under s. 7 of the Charter. The Court held that international law rejects deportation to torture, even where national security interests are at stake and that this is the norm that best informs the content of the principles of fundamental justice under s. 7 of the Charter.

4.4.6. Death Penalty

Before the death penalty was abolished in Canada, the Supreme Court in R. v. Miller and Cockriell^{Note 56} concluded that the mandatory death penalty for murder did not constitute cruel and unusual punishment under s. 2(b) of the Bill of Rights. Since capital punishment has been abolished, it has not been necessary to determine whether the death penalty violates s. 12 of the Charter.

However, the Supreme Court in Kindler,^{Note 57} considered whether the extradition (by unconditional surrender) of a person to the United States to face a possible death sentence contravened s. 12 of the Charter. The majority held that it did not, that the punishment which might be imposed by surrendering the fugitive would be the result of laws and actions of another jurisdiction. In contrast, the dissenting judgement would have held that if Canada surrendered Mr. Kindler without seeking assurances from the U.S. government that the death penalty would not be imposed, it would violate s. 12 of the Charter. (The dissenting judgement of Mr. Justice Cory in Kindler explicitly finds that capital punishment, corporal punishment, lobotomy and castration constitute cruel and unusual treatment).

The most recent pronouncement of the Supreme Court of Canada with respect to this issue is Burns.^{Note 58} The Court, in a unanimous judgement, held that extradition without assurances that the death penalty would not be imposed would violate s. 7 of the Charter in all but exceptional cases. The Court agreed with the view in Kindler that because of the causal remoteness between the possible imposition of capital punishment by another state and the act of extraditing the fugitive, section 12 of the Charter did not apply directly. The punishment or treatment would not be imposed by the Canadian courts. The proper inquiry was whether extradition without assurances would violate the principles of fundamental justice under s. 7. The Court talked about whether a particular treatment or punishment may sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death, lopping off the hands of a thief and ultimately, the Court concludes, extradition without assurances in all but exceptional cases.

4.4.7. Summary: Cruel and Unusual Punishment or Treatment

Before turning to an examination of s. 7, we can note that a review of the cases in which the Canadian Courts have considered whether punishments or treatments are cruel and unusual indicate that in general, the categories of circumstances being considered include:

• imposition of mandatory minimum sentences
• indeterminate detention
• confinement due to mental illness
• pre-trial custody
• prison conditions
• parole and mandatory supervision
• repeated prosecutions

The cases are generally decided using the principles of proportionality set out in Smith. A quick review of many of the cases indicates that the Courts do not find violations of s. 12 to occur that often.

4.4.8. Punishment Imposed in Disregard of International Standards

Turning to s. 7 and the concept of fundamental justice, the issue which will confront the RPD and the RAD is when will a punishment imposed pursuant to lawful sanctions be imposed in disregard of accepted international standards. Is the question of whether a punishment or treatment is contrary to fundamental justice under s. 7 the same question as whether it is imposed in disregard of international standards?

This brings us to the question of what are the principles of fundamental justice. In Re B.C. Motor Vehicle Act,^{Note 59} Lamer J. expressly recognized the role played by international law and opinion in elucidating this question:

[Principles of fundamental justice] represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law.^{Note 60}

In Burns, the Supreme Court looked to international abolitionist initiatives and practices in determining the question of whether extradition without assurances would be contrary to s. 7 of the Charter. The Court concluded:

[92] The existence of an international trend against the death penalty is useful in testing our values against those of comparable jurisdictions. This trend against the death penalty supports some relevant conclusions. First, criminal justice, according to international standards, is moving in the direction of abolition of the death penalty. Second, the trend is more pronounced among democratic states with systems of criminal justice comparable to our own. The United States (or those parts of it that have retained the death penalty) is the exception, although of course it is an important exception. Third, the trend to abolition in the democracies, particularly the Western democracies, mirrors and perhaps corroborates the principles of fundamental justice that led to the rejection of the death penalty in Canada.

In light of these comments, it would seem appropriate to conclude that if a punishment or treatment was contrary to fundamental justice, it would also be contrary to international standards.

4.5.1. European Court of Human Rights^{Note 61} (ECHR)

The following cases interpret Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which reads as follows:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

4.5.2. United Kingdom: Cruel and Unusual Punishment

In the following cases, the UK Courts consider various statutes from different Commonwealth countries. They are included because they interpret the phrase "cruel and unusual punishment".

• In Guerra v. Baptiste, November 6, 1995, the Privy Council examined whether delay on death row constituted cruel and unusual punishment contrary to the Constitution of Trinidad and Tobago. It concluded that to execute the appellant after a lapse of four years and 10 months between the imposition of a sentence of death and completion of the entire domestic appellate process would constitute cruel and unusual punishment. Furthermore, the giving of less than 17 hours notice to the appellant of his execution breached his constitutional rights. The sentence was commuted to life imprisonment.
• The same result was reached by the Court of Appeal in Pratt and Another v. Attorney-General for Jamaica and Another, November 2, 1993. The Court noted: "It was part of the human condition that a condemned man would take every opportunity to save his life through use of the appellate procedure. If it enabled the prisoner to prolong the appellate hearings over a period of years, the fault was to be attributed to the appellate system that permitted such delay and not to the prisoner who took advantage of it. Appellate procedures that echoed down the years were not compatible with capital punishment. The death-row phenomenon must not become established as a part of the jurisprudence." Again, the sentences were commuted to life imprisonment.
• In Thomas v. Baptiste (Commissioner of Prisons), [1999] J.C.J. no. 12 (P.C.), (QL) an appeal was brought with leave from the Court of Appeal of Trinidad and Tobago. The appellants appealed the lawfulness of their death sentences for murder. The appellants argued that the imposition of the sentences would amount to cruel and unusual punishment given the length of time they had been in prison and the conditions under which they had been kept. The Privy Council found the pre-trial and post-trial periods of detention were not so prolonged that it would now be unconstitutional to carry out the death sentences. In the case of Thomas, he had spent 2 years and 8 months in custody pre-trial, and 2 years and 7 months post-trial. Hilaire spent a total of 7 years and 5 months pre- and post-trial. With regard to the conditions under which the prisoners were kept, the Privy Council noted that the appellants were detained in cramped and foul smelling cells, deprived of exercise and access to fresh air for long periods of time, and when allowed to exercise, were handcuffed. The Privy Council questioned whether the conditions "went beyond harsh and could properly be described as cruel and unusual". The Court found that the determination that prison conditions were cruel and unusual amounted to a value judgement requiring an analysis of local conditions, particularly in third world countries, both inside and outside of prison. Furthermore, the Court noted that Pratt did not establish a principle that prolonged detention prior to execution constituted cruel and unusual punishment. It was the additional cruelty of imposing the death sentence following prolonged detention that was cruel and unusual punishment.

  The Court also noted that in cases where a condemned man was shackled, flogged, tortured or kept in solitary confinement, the imposition of the death penalty following such treatment would be cruel and unusual. However, in this case, neither the conditions of detention nor the length of time in custody were so extreme as to make the imposition of the death sentence cruel and unusual punishment.

• In Higgs v. Minister of National Security, [1999] J.C.J. no. 55(P.C.) (QL), the appellants argued that, having regard to the conditions under which they had been held and the length of time they had been detained, both before and after conviction, the imposition of death sentences would amount to "inhuman or degrading treatment or punishment" contrary to the Constitution of the Bahamas. The Privy Council stated that the relevant principle was as follows: "if a man has been sentenced to death, it is wrong the relevant principle was as follows: "if a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death." This principle does not apply to treatment that cannot be regarded as aggravating punishment. Pre-trial delay and prison conditions are not additional forms of punishment. The question is whether there is a nexus between the matters complained of and the sentence of death, or, in other words, was the treatment the prisoner complains of an aggravation of the death sentence? The Privy Council noted that this assessment is made more difficult when conditions are aggravated by overcrowding and lack of resources. In this case, the period of detention and the detention conditions were not punishments aggravating the imposition of the death sentence; there was no nexus.
• In Boodram et al v. Baptiste (Commissioner of Prisons), [1999] J.C.J. no. 27(P.C.) (QL), on appeal from the Court of Appeal for Trinidad and Tobago, the appellants submitted that hanging constituted cruel and unusual punishment. The Court found that hanging was the only lawful method of execution and was not necessarily cruel, despite the evidence provided by the appellants of the suffering caused by hanging.
• In Briggs v. Baptiste (Commissioner of Prisons), [1999] T.N.L.R. no. 762 (P.C.) (QL), the Court found that repeated reading of the death warrant did not amount to cruel and unusual treatment.
• In Treadaway v. Chief Constable of West Midlands (July 29, 1994), the Queen's Bench Division granted exemplary damages to a man who had been seriously assaulted by police officers in order to obtain a confession to involvement in armed robberies, for which he was later convicted by a jury. The Court found that the treatment of the plaintiff constituted torture.

4.5.3. Australia: Cruel and Unusual Punishment

Only one relevant case from the Australian High Court was found, however, there are many cases at lower levels. Those cases are not reviewed here.

• The leading case appears to be Sillery v. The Queen (1981) 55 ALJR 509, at p 513; 35 ALR 227. Sillery was convicted of hijacking a plane and sentenced to imprisonment for life. The trial judge held that a sentence of life imprisonment was mandatory under the statute. Sillery appealed. The issue was one of statutory interpretation: did the statute require a sentence of life imprisonment or did the trial judge have discretion not to impose a life sentence? The High Court found that a mandatory sentence of life imprisonment for hijacking, given the broad statutory definition of the offence, would be "cruel and unusual, because it serves no valid legislative purpose". The Court noted that the power to inflict cruel and unusual punishments should not be read into the Australian Constitution and that it was doubtful that Parliament had the authority to make laws authorizing cruelty. Further, all statutes should be construed (in the absence of unmistakable language to the contrary) humanely, according to modern civilized standards.

4.5.4. United States: Cruel and Unusual Punishment

The Eight Amendment to the Unites States Constitution prohibits "cruel and unusual punishment". There are an endless number of cases dealing with this amendment, particularly in the context of capital punishment, prison conditions and solitary confinement. A full review of the American jurisprudence is beyond the scope of this paper but there is one case worth mentioning.

• In Furman v. Georgia, [1972] SCT-QL 2435, the Supreme Court considered whether the death penalty constituted cruel and unusual punishment. The opinion of Mr. Justice Marshall (concurring) includes a lengthy history of the phrase "cruel and unusual" dating back to the treason trials of 1685 - the "Bloody Assizes" - which followed an abortive rebellion by the Duke of Monmouth, which marked the culmination of the parade of horrors, and which most historians believe was the event that finally spurred the adoption of the English Bill of Rights containing the progenitor of the American prohibition against cruel and unusual punishments (paragraph 171).

  Mr. Justice Marshall sets out four criteria that help a Court determine what constitutes cruel and unusual punishment:

  • Punishments that involve so much physical pain and suffering that civilized people cannot tolerate them (paragraph 203).
  • Punishments that are unusual (i.e., the meaning in the legislation is not clear). If such treatments exist, they must be intended to serve a humane purpose (paragraph 204).
  • Punishments that are excessive and serve no valid legislative purpose (paragraph 205).
  • A punishment may be valid and serve a legislative purpose but it may be invalid if popular sentiment abhors it. This sentiment can be discerned from an examination of the evolving standards of decency that mark the progress of a maturing society. In this sense, stare decisis bows to changing values (paragraphs 200 and 206).

4.5.5. Summary and Conclusions

The Australian and the American cases reviewed suggest that a punishment that serves no valid legislative purpose may be found to be "cruel and unusual".

The UK Judicial Committee of the Privy Council cases offer some insight into situations concerning capital punishment, prison conditions, and the length of time prisoners are detained.

The cases from the ECHR rely on a distinction between torture and inhuman or degrading treatment or punishment. As noted in Aydin, "torture" refers to cases where ill treatment is deliberate and causes particularly cruel suffering. The test set out in Ireland and Tyrer is used when assessing whether ill treatment is severe enough to fall within the scope of Article 3. The assessment is relative, and takes into account all the circumstances of the case.

For treatment to amount to degrading punishment, it must be distinguished from punishment in general. As noted in Tyrer, the humiliation or debasement associated with degrading punishment must attain a higher level of severity than that associated with punishment in general. The factors looked at by the ECHR when considering if a punishment or treatment is inhuman or degrading include: the level of humiliation involved; the intensity of physical or mental suffering; delay; premeditation; the victim's feelings of fear, anguish, and inferiority; publicity; whether the aim of the treatment was to humiliate or debase the individual; and the effects of the treatment.

The ECHR has found inhuman and degrading treatment in a wide variety of cases. For example, the disappearance of family members, detention conditions, burning and destruction of property, police violence upon arrest or in detention, birching, the "death row phenomenon" and the return of refugees to places where they have a well-founded fear of persecution.

Situations where inhuman and degrading treatment was not found by the ECHR have included the removal of a nine-year-old girl, alone, to her country of origin; school suspensions for Jehovah's witnesses refusing to participate in national celebrations; failure to provide painkillers to individuals in custody; disappearance of family members; and exposure to smells, noise and pollution from an industrial plant.

The application of the principles established in the ECHR may be of some use in interpreting the phrase "cruel and unusual treatment or punishment" in the IRPA, particularly since the Supreme Court of Canada in Burns has equated the words in Article 3 of the European Convention (inhuman and degrading) with s. 12 of the Charter. For example, the distinction drawn by the ECHR between torture and inhuman or degrading treatment or punishment may be useful, whereby the label of "torture" is reserved for deliberate treatment causing particularly cruel suffering. Further, the requirement that treatment or punishment must reach a minimum level of severity in order to be regarded as inhuman or degrading, and thus distinguished from legitimate punishment or treatment. Additionally, the factors looked at in assessing the severity of the treatment or punishment, and the contexts in which inhuman or degrading treatment or punishment has been found, may provide useful references.