Proportionality in the criminal law: The differing american versus canadian approaches to punishment

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. Part I of this Article shall briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. Part II of this Article shall present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing. Part III of this Article shall present and explain the Canadian s. 12 approach to the constitutionality of mandatory criminal sentencing. Part IV of this Article shall compare and contrast the two national approaches and present the underlying argument of this Article, namely that if one’s concern is the fair and proportionate application of justice, then the Canadian approach to reconciling the constitutional prohibition against “cruel and unusual punishment” and the application (through penal statute) of mandatory criminal sentencing is the superior one. Part V of this Article shall explore the possible reasons for the differing national approaches to mandatory criminal sentencing.
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