A No Hope Guarantee: The Cruel and Unusual Treatment of Victoria’s Bylaw Impound Scheme

Abstract

Since the inclusion of section 12 in the Canadian Charter of Rights and Freedoms (the “Charter”), much has been written about cruel and unusual punishment. However, relatively little attention has been paid to the issue of cruel and unusual treatment. As society becomes increasingly regulated and individuals interact with government through administrative bodies with broad discretion, clearer protections against cruel and unusual treatment are necessary to fully realize the intent of the Charter right. Over the past two decades, the City of Victoria has progressively restricted the use of public spaces by individuals experiencing homelessness. While these restrictions have been challenged under various Charter provisions, section 12 has rarely been considered. !e 2023 amendments to the City of Victoria’s public space bylaws o#er a timely opportunity to consider the application of section 12 in the context of non-punitive administrative decisions that amount to government treatment. Although the test for cruel and unusual treatment requires further clari%cation, Victoria’s bylaw scheme underscores the need for section 12 analyses to more explicitly address government treatment, or risk neglecting the Charter’s dignity-centred focus.