期刊名称：The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
印刷版ISSN：0225-0108
出版年度：2008
卷号：40
期号：1
页码：18
出版社：Osgoode Hall Law School of York University
摘要：The late Antonio Lamer took the lead, under the Charter, in constitutionalizing the substantive criminal law. In that regard, the Motor Vehicle Reference may be his most important Charter decision: the re, he proposed an institutional the ory of substantive review for section 7 — a guarantee which, it is agreed, was intended only to have procedural content. Not only was Justice Lamer’s the ory of review unsound, the section 7 fault jurisprudence which followed the MVR was no more than a modest success. Yet analysis shows how the section 7 cases are linked to section 12 — and its prohibition on cruel and unusual treatment or punishment — by a shared concern for proportionality in the relationship between fault and punishment. After undertaking a critique of the section 7 jurisprudence, this paper proposes that a substantive interpretation of that guarantee be abandoned, and suggests that questions of proportionality — whether arising from a fault deficit or the nature of the punishment — be addressed by section 12.
