….okay in Canada, federal prosecutors say.

Section 12 of the Charter states: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Dipping into our archives to review what’s been sitting on the back burner waiting for attention is Toronto Globe and Mail justice writer Sean Fine’s, “Federal prosecutors defend use of cruel, unusual punishment,” from last spring.

Several convicted people are using section 12 to challenge the legality of a Conservative-era law that imposes a financial burden on all convicted criminals, no matter how poor. “The mandatory victim surcharge was a centrepiece of the Harper government’s push to give more rights to victims and fewer to accused and convicted offenders,” says Sean Fine in his column.

Lawyers from the Public Prosecutions Service of Canada defended the surcharge before the Ontario Court of Appeal in mid-March, citing section 1 of the Charter where the government may seek to justify limits on rights, and courts must decide if the limits are reasonable. They claim the law is fair because the poor have extra time to pay, and cannot be jailed for defaulting.

The law ignited a judicial rebellion from the onset when judges in many provinces gave offenders up to 99 years to pay, or charged as little as thirty cents, or simply ignored it. And, the defence arguments are deeply at odds with the Liberal government’s present position on this law, and on the primacy of the Charter.

The federal prosecution service acts independently from the justice minister to avoid possible or perceived political interference. The minister does have the authority of a final say, and this case raises an issue about when that power should be employed. As it is, the present government is intent on reviewing the status of legislation that is not consistent with its commitments to a progressive approach to criminal law, and its support of Charter values.

An interesting sidebar is that if the prosecutors succeed in their arguments that the government can justify cruel and unusual punishment, the ruling might be used to defend practices up to and including torture.

One justice scholar recalls a 1982 conversation with Pierre Trudeau, father of Prime Minister Justin Trudeau, and the Canadian prime minister who initiated the Charter. According to the senior Trudeau, “You know, I think section 12 might be the only absolute right.”

The appeal judges reserved their decision.