punishment. He pointed out that punishment does not become "cruel and unusual" merely because of the pain inflicted. The true significance lay in the fact that members of the human race are treated:
"… as nonhumans, as objects to be toyed with and discarded … [and that this is] … thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity."[1]
[29] Although some of the views expressed in Furman v Georgia were qualified in the subsequent case of Gregg v Georgia,[2] Stewart J in the latter case affirmed that the basic concept underlying the Eighth Amendment "is the dignity of man."[3]
[30] The framework of Canadian rights legislation is not much different from ours and section 1 of the Canadian Charter plays a role not very dissimilar to that of section 33(1) of the Constitution. The Canadian Supreme Court has interpreted the concept "cruel and unusual punishment" as a "compendious expression of a norm" to which the relevant test was "whether the punishment prescribed is so excessive as to outrage the standards of decency."[4] Factors to be taken into account in the assessment of the punishment included its effect, which must not be grossly disproportionate, the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. According to Dickson CJ and Lamer J:
"… some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed …"[5]
[31] The decisions of the Supreme Courts of Namibia and of Zimbabwe are of special
- ↑ Id. at 273.
- ↑ 408 US 153 (1976). The ruling in this case differed from that in Furman v Georgia; it was held that the new statute providing for capital punishment in the State of Georgia was not prohibited by the Eighth Amendment.
- ↑ Id. at 173.
- ↑ Smith v The Queen (1988) 31 CRR 193, 213.
- ↑ Id. at 214.
