Shocks the conscience is a phrase used as a legal standard in the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

and

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...

. An action is understood to "shock the conscience" if it is "grossly unjust to the observer."

United States

In US law, the phrase typically describes whether or not the

due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...

requirement of the

Fourteenth Amendment to the United States Constitution The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered as one of the most consequential amendments, it addresses citizenship rights and ...

has been met. The term originally entered into case law with '' Rochin v. California'' (1953). This balancing test is often cited as having subsequently been used in a particularly subjective manner. The term is also used in some jurisdictions as a means to determine whether a jury award is out of line with the underlying

civil wrong Civil may refer to: * Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights * Civil disobedience *Civil engineering * Civil (journalism), a platform for independent journalism *Civilian, someone not a m ...

; a jury award can be overturned on appeal if, by its amount relative to the underlying civil wrong, it "shocks the conscience". "Shock the conscience" has also been used as a constitutional standard in discussing the issue of whether or not detainees can be

torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogation for information, or intimidating third parties. Some definitions are restricted to acts ...

Canada

In Canada the phrase was adopted in the case '' Canada v. Schmidt'' (1987) to determine whether

extradition Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdi ...

would be a breach of

fundamental justice In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...

under the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...

''. A court may look at the justice system of another country, and disregarding "finicky" requirements of fundamental justice in Canada, may consider some potential punishments in other countries to be so outrageous that a person should not be put at risk by the extraditing government. The measure was used in ''

United States v. Burns ''United States v Burns'' 0011 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada that found that extradition of individuals to countries in which they may face the death penalty is a breach of fundamental justice under sect ...

'' (2001) to find that the possibility of execution would shock the conscience. Critics such as Professor

Peter Hogg Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurisp ...

have suggested that the use of this measure indicates courts have "enormous discretion," and he argues this is demonstrated by inconsistencies between what is considered shocking and what is considered

cruel and unusual punishment Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisd ...

.Peter Hogg, ''Constitutional Law of Canada''. 2003 Student Ed., pages 991-992.

United States

Canada

References

Further reading