Indeterminate Sentences and Section 12 of the Charter

Abstract

Indeterminate sentences are uniquely reserved for two classes of offenders, dangerous offenders and individuals designated not criminally responsible on account of mental disorder. These sentences effectively keep individuals in constant jeopardy before a Parole or Review Board. This paper reviews the constitutionality of these regulatory schemes under Section 12 of the Charter; its prohibition against “cruel and unusual treatment or punishment.” In this paper, I examine the legislative and jurisprudential development of the regimes, and their impact on individuals given these designations. The paper argues that the regimes result in a gross and systemic violation of the rights of individuals who have been given indeterminate sentences. It finally argues that there is also a moral imperative to reject any indefinite detention that is not subject to judicial review. This paper discusses and seeks to bring attention to the unfair and unconstitutional treatment of two vulnerable groups in our judicial system. Through greater visibility, the author hopes to put pressure on our legal system and the government to review these types of sentences and their true impact on individual rights and freedoms.