In the words of Professor Tarnopolsky, as he then was, supra, at p. 33: it is very rare indeed that a court could secondguess Parliament as to whether the penal aim to be achieved is a legitimate one or whether there are adequate alternatives. Indeed, its historical origins would appear to support this view. European Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights. 1970, c. C34, and other penal statutes. vLex Canada is offered in partnership with: - The Saskatchewan Court of Appeal discussed the meaning of the word "planned" as found in s. 214(2) of the Criminal Code of Canada, R.S.C. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. The mandatory imposition of the minimum sevenyear sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". They were convicted of robbery and appealed on the grounds that the force came after they had appropriate the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. It is said that he had a lawful excuse by reason of his belief, his honest and genuinely held belief that he was destroying property which he had a right to destroy if he wanted to. The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? 10. . A punishment failing to have these attributes would surely be cruel and unusual. In his opinion, the non constitutional nature of the Canadian Bill of Rights required the application of traditional rules of interpretation. Facts: The defendant, a police woman, received an overpayment in her wages by mistake. (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) 295, this Court expressly held that a corporation charged with a criminal offence under the Lord's Day Act could argue that the Act violated freedom of religion, under s. 2(a) of the Charter, without also alleging that the statute specifically infringed its religious beliefs. I put the flooring and that in, so if I want to pull it down its a matter for me.". She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". ), pp. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. In the situation I have described of the cigarette of marihuana, it varies only notionally from the possessor of the same narcotic within the country. Ct. J. in R. v. Guiller, Ont. An example of the Parliamentary approach may be found in the steps taken in enacting s. 5(2) of the Narcotic Control Act, as detailed in the judgment of Arnup J.A. In my opinion the words "cruel and unusual" as they are employed in s. 2(b) of the Bill of Rights are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual. This might not be so if the legislatively prescribed minimum was, for example, six months or a year because, although this might be arbitrary, it arguably would not be "so excessive as to outrage standards of decency". It becomes clear, then, that while the barbarous punishments of the past which called into being the prohibition of some three centuries ago are mercifully unlikely to recur, the prohibition is saved from any suggestion of obsolescence by the addition of the word "treatment". Each of the nine members of the United States Supreme Court wrote separate reasons, the majority holding that the imposition of the death penalty under a variety of state statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 1970, c. P2, s. 15, as am. (3d) 277 (Alta. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. December 31, 1979. Only full case reports are accepted in court. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. The legislative approach is clear and direct. I imagine this might be so because cases under s. 5(2) of the Narcotic Control Act are instituted and prosecuted by the "Federal Crown". these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. Februar 1975 108; 102 A.R. ), refd to. Subscribers are able to see a visualisation of a case and its relationships to other cases. Advanced A.I. A large degree of latitude must, therefore, be permitted to Parliament in determining the appropriate punishment, particularly where the question is not the nature of the punishment but only its extent. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. A punishment may be proportionate to the offence, in the sense that it does not outrage the public conscience or go beyond what is necessary for the achievement of a valid social aim, and yet still be cruel and unusual because it is imposed arbitrarily. Motor Vehicle Act, supra; and R. v. Oakes, supra, this Court indicated that once there has been a prima facie violation of the Charter the burden rests upon the authorities to salvage the legislative provision in question. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. He summarized his reasons at p. 425 of his judgment: In short, the effect of s. 5(2) is that guilt or innocence on a charge of importing or exporting a narcotic is determined judicially by a judge or jury, but the sentence is not determined by a judge or a jury, but is predetermined by Parliament. In view of the careful and extensive consideration given this matter by Parliament and the lack of evidence before this Court suggesting that an adequate alternative to the minimum sentence exists which would realize the valid social aim of deterring the importation of drugs, I cannot find that the minimum sentence of seven years goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. (2d) 557; R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. (No. He appeals against that conviction upon a question of law. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". The jury convicted both of robbery and they appealed contending that nudging fell short of using force. 1970, c. P6, s. 24, as amended). This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. For example, s. 12 would not be infringed if a judge, after having refused to hear any submissions on sentencing, indicated that he would not take into consideration any relevant factors, but then went on to impose arbitrarily a preconceived but appropriate sentence. , that the death penalty for murder was not cruel and unusual punishment. Facts: The defendant, an assistant at an electrical shop, was asked by an acquaintance to supply goods (16,000) in exchange for two building society cheques that the defendant knew were stolen. The Court there found that the sevenyear minimum in s. 5(2) of the Narcotic Control Act, the same provision under consideration in this appeal, was "not so disproportionate to the offence that the prescribed penalty [was] cruel and unusual". 320 N.E.2d 668 (1974). I would adopt these words as well and say, in short, that to be "cruel and unusual treatment or punishment" which would infringe s. 12 of the Charter, the punishment or treatment must be "so excessive as to outrage standards of decency". And by that I mean that they are cruel and unusual in their disproportionality in that no one, not the offender and not the public, could possibly have thought that that particular accused's offence would attract such a penalty. The limitation at issue here is s. 12 of the Charter. The judgments of the majority, particularly those of Brennan J. and Marshall J., sought to define a series of principles upon which the constitutional validity of punishments could rest. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. Facts: The defendant stole bags outside charity shops that had been donated. A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics: (1)The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2)The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or. (1978), 10 Ottawa L.R. The test for review under, The numerous criteria proposed pursuant to s. 2(, There is a further aspect of proportionality which has been considered on occasion by the American courts: a comparison with punishments imposed for other crimes in the same jurisdiction (, On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. Yet, there is a law in Canada, s. 5(2) of the. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? "The State, even as it punishes", he said, "must treat its members with respect for their intrinsic worth as human beings." (3d) 336; R. v. Morrison, Ont. (2d) 23 (Ont. ), 1 Wm. ), at p. 53). L.Q. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. This minimum sentence continued through R.S.C. Advanced A.I. I believe this is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment. 9. McMartin v. The Queen, [1964] S.C.R. 101. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. The question is not whether the sentence is too severe, having regard to the particular circumstances of offender "A", but whether it is cruel and unusual, an outrage to standards of decency, having regard to the nature and quality of the offence committed, and therefore too severe for any person committing the same offence. The particular drugs that from time to time are in the greatest demand, or widest use, or are the greatest danger, may vary, but the basic problem remains. The trial judge directed the jury to acquit. Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Where Do We Look for Guidance?" and McIntyre, Chouinard*, Lamer, Wilson, LeDain and LaForestJJ. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. Yet, as Lamer J. points out, s. 5(2) of the, I disagree, however, with Lamer J. that the arbitrary nature of the minimum sentence under s. 5(2) of the Act is irrelevant to its designation as "cruel and unusual" under s. 12. There is an 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . The importation of narcotics is not a constitutionally protected activity. Per Le Dain J.: Imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. MR. J. RYLANCE appeared on behalf of the Appellant. R. v. Smith. To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. Those nonusers, who import and traffic in such noxious drugs as heroin, are slave masters and responsible not only for the destruction of numerous human beings, but also for the very extensive criminal activity which is spawned by the drug trade. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. A claim which was eventually rejected. ), 1 Wm. In my view, the appellant cannot succeed on this first branch. The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). Remedy will then flow from s. 24. Therefore, to conclude, I find that the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act infringes the rights guaranteed by s. 12 and, as such, is a prima facie violation of the Charter. I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. Constitution of the United States of America. Subscribers are able to see a list of all the documents that have cited the case. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. Held: At first instance the defendant was convicted of theft. Further, there will be a range of sentences which may be considered excessive, but not so excessive or so disproportionate as to "outrage standards of decency" and thereby justify judicial interference under s. 12 of the Charter. I will therefore address the question of cruel and unusual punishment under s. 12 of the Charter. It has introduced the safeguard of two opinions: but, if they are formed in good faith by the time when the operation is undertaken, the abortion is lawful. In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. (2d) 337; Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. It was therefore open to our courts to interpret the laws of Canada and to choose between various meanings so as to avoid the infliction of cruel and unusual punishment. In so doing, the courts will apply the general principles of sentencing accepted in the courts in an effort to make the punishment fit the crime and the individual criminal. That case and others may have to be given limited interpretation in due course if it is concluded that the, Accordingly, I propose to treat the concluding words "but not less than seven years" in s. 5(2) of the Narcotic Control Act inoperable as being in contravention of, Smith's appeal was dismissed by the Court of Appeal for British Columbia (, , also a decision of the British Columbia Court of Appeal. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. Of course, Lambert J.A. This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. I should add that, in my view, the minimum sentence also creates some problems. 7. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. 10. He was uncertain as regards the proper approach to be taken when assessing whether legislation, which prima facie violates a section, can be salvaged under s. 1 of the Charter. 1970, c. N1, s. 5(2). First, the measures adopted must be carefully designed to achieve the objective in question. Most of the drugs of vegetable origin are not native to Canada. (2)Every person who violates subsection (1) is guilty of an indictable offence and is liable to imprisonment for life but not less than seven years. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. He would have imposed a sentence of five years' imprisonment. There is no dispute that the roofing, wall panels and floor boards became part of the house and, in law, the property of the landlord. Reasons The defense claimed that in order to convict for murder it would have to be proven that it was Smith's actions that caused the death. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. As stated by the majority of this Court in Re B.C. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. The word force is to be given its ordinary meaning and requires no direction to the jury. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. That nudging fell short of using force appealed contending that nudging fell short of using force to see a of., at p. 352 are not native to Canada a sentence of five years ' imprisonment v. Kroeger 1984... 1972 the landlord informed the Appellant that his brother could not remain M... 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