1982], which is declared to be the “supreme law of Canada” such
that any law inconsistent with the Charter is “to the extent of
the inconsistency, of no force and effect”. 5
[ 34] Mandatory minimum sentences have been the subject of
Charter scrutiny in a number of cases, perhaps the most well-known being R. v. Smith, 6 in which the Supreme Court of Canada
struck down a seven-year mandatory minimum sentence for
importing a narcotic into Canada. In Smith and a number of
Supreme Court cases that followed it (notably, R. v. Goltz, R. v.
Morrisey and R. v. Ferguson7), the Supreme Court articulated the
test for what constitutes cruel and unusual punishment and the
process to be followed in conducting that analysis.
[ 35] The s. 12 analysis proceeds in two stages. First, the trial
judge must consider whether the minimum sentence at issue
constitutes cruel and unusual punishment based on the particular circumstances of the offender before the court. If not, the
trial judge would then proceed to the second stage and consider
whether the minimum sentence would be cruel and unusual in
light of reasonable hypothetical circumstances that might arise.
In Smith, the offender had imported seven and a half ounces of
cocaine across the border from the United States into British
Columbia. The focus of the court was not on whether the minimum sentence was cruel for this particular offender, but rather
on the broad sweep of the provision that would require a seven-year sentence for a young person crossing the border with a single marijuana cigarette.
[ 36] Under the first stage of this analysis, the trial judge is
required to consider what would be an appropriate sentence for
the offender applying the general principles of sentencing mandated under the Criminal Code. That sentence must then be
compared to the mandatory minimum imposed by the challenged legislation. It is only when the mandatory sentence
would be “grossly disproportionate” for that offence and that
offender that the s. 12 standard for cruel and unusual punishment is met. 8
5 The Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11, s. 52( 1).
6 R. v. Smith,  1 S.C.R. 1045,  S.C.J. No. 36.
7 R. v. Goltz,  3 S.C.R. 485,  S.C.J. No. 90; R. v. Morrisey, 
2 S.C.R. 90,  S.C.J. No. 39, 2000 SCC 39; R. v. Ferguson, 
1 S.C.R. 96,  S.C.J. No. 6, 2008 SCC 6.
8 See Smith, supra, at p. 1072 S.C.R.