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[Kelley Deppert]

There are several kinds of treatment or punishment that, while not inherently cruel and unusual, may be grossly disproportionate in particular circumstances and thus contrary to the first prong of protection afforded by section 12.

One appellate court has concluded that placements in administrative segregation for a continuous period longer than 15 calendar days infringe section 12 of the Charter (Canadian Civil Liberties Association v. Canada, supra at paragraphs 68-119; Brazeau v. Canada (Attorney General), 2020 ONCA 184; Francis v. Ontario, 2021 ONCA 197). In the context of a class action, the same court has upheld the finding that for inmates who are seriously mentally ill, a placement in administrative segregation for any duration is contrary to section 12 (Francis, supra at paragraphs 30-49). Other cases have held that segregation of an inmate is not necessarily contrary to section 12, but that it may be cruel and unusual treatment or punishment in certain instances, if it is so excessive as to outrage standards of decency (Olson, supra, aff'd without reference to this point, S.C.C.; Marriott, supra at paragraphs 34-46; British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62 at paragraphs 525-534, partly overturned but not on this issue in British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, appeal to SCC discontinued). A prolonged period of administrative segregation in pre-trial detention can also be found to be a violation of section 12, in light of the particular conditions and the impacts on the individual (R. v. Capay, 2019 ONSC 535 at paragraphs 399-415; R. v. Husbands, 2019 ONSC 6824 at paragraphs 172-177).

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It is not necessarily cruel and unusual to detain an accused person awaiting trial in conditions that are similar to those for individuals who have been convicted and are serving a sentence of imprisonment. So long as the conditions do not "outrage standards of decency", in light of all the circumstances, section 12 is not limited by this sort of treatment. (Sanchez v. Superintendent of the Metropolitan Toronto West Detention Centre (1996), 34 C.R.R. (2d) 368 (Ont. C.A.)); applied in R. v. Charley, 2019 ONSC 6490 at paragraphs 23-30).

On Tuesday, Winmill sided with Pizzuto on the potential for an Eighth Amendment right violation, which allows the case to move forward. The Eighth Amendment prohibits cruel and unusual punishments. The 14th Amendment prohibits the state from depriving any person of life, liberty or property without due process.

2. The physician shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment.

9. Recalling the Declaration of Hamburg concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman or Degrading Treatment, the World Medical Association supports, and encourages the international community, the National Medical Associations and fellow physicians to support, the physician and his or her family in the face of threats or reprisals resulting from a refusal to condone the use of torture or other forms of cruel, inhuman or degrading treatment.

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