It is this certainty, and not just the potential, which causes s. 5(2) to violate prima facie s. 12. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. R v Smith [1959] 2 QB 35 The defendant, a soldier, got in a fight at an army barracks and stabbed another soldier. Particulars of Offence: David Raymond Smith and Steven John Smith on the 19th day of September 1972 in Greater London, without lawful excuse, damaged a conservatory at 209, Freemason's Road, E16, the property of Peter Frank Frand, intending to damage such property or being reckless as to whether such property would be damaged." However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. . The minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act fails the proportionality test and therefore prima facie infringes the guarantees established by s. 12 of the Charter. 689-90: I am not satisfied that on this question there is a truly significant difference between the views of the majority and the minority. 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. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." The principles developed in the United States under the Eighth Amendment, while of course not binding on this Court, are helpful in understanding and applying the prohibition against cruel and unusual punishment contained in s. 12 of the Charter. lawprof.co. He was guilty of perversion of the court of justice. Since the complaint is solely as to the duration of the minimum sentence provided in s. 5(2), it becomes relevant to consider the length of the sentence as it will be served. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. Present: Dickson C.J. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. How then is this compendious expression of a norm to be defined? 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. This ensures that a punishment will not be imposed without reason or standards. The role of Parliament in the determination and definition of this aspect of public policy would be eliminated. C.A. L.R. 4; Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. The result sought could be achieved by limiting the imposition of a minimum sentence to the importing of certain quantities, to certain specific narcotics of the schedule, to repeat offenders, or even to a combination of these factors. As indicated above, the offence of importing enacted by s. 5(1) of the Narcotic Control Act covers numerous substances of varying degrees of dangerousness and totally disregards the quantity of the drug imported. As stated by the majority of this Court in Re B.C. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. (2d) 213 (S.C.C. His conclusion that a predetermination of a sentence by Parliament is arbitrarily imposed, if right, would mean that all minimum sentences are invalid and probably also all maximum sentences. Solicitors for the appellant: Serka & Shelling, Vancouver. There are conditions associated with the service of sentences of imprisonment which may become subject to scrutiny, under the provisions of s. 12 of the Charter, not only on the basis of disproportionality or excess but also concerning the nature or quality of the treatment. In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. Some of the tests are clearly aimed at the nature or quality of the punishment, others concern themselves more with the duration of punishment under the heading of proportion ality. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. In other words, the conditions under which a sentence is served are now subject to the proscription. 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. Facts: The two defendants broke into a woman's home. After pleading guilty before Wetmore Co. Ct.J., the accused challenged the constitutional validity of the sevenyear minimum sentence found in s. 5(2) of the, . 48889: In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. Section 12, in its terms and in its intended application, is absolute and without qualification. As noted above, while the prohibition against cruel and unusual treatment or punishment was originally aimed at punishments which by their nature and character were inherently cruel, it has since been extended to punishments which, though not inherently cruel, are so disproportionate to the offence committed that they become cruel and unusual: There is a further point which should be made regarding proportionality. An appropriation exists even where the victim consents to the appropriation. ), p. 790; and Mitchell, supra). I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. (2d) 23) reversed the decision of Borins Co. Ct. J. and held that s. 5(2) did not impose a punishment that was so disproportionate to the offence as to be cruel and unusual. Does the punishment go 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? You also get a useful overview of how the case was received. In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. Employing it here, and considering what was said in R. v. Shand with respect to the enactment of s. 5(2) of the Narcotic Control Act I am not persuaded that it violates either s. 7 or s. 9 of the Charter. Murder - First degree murder, meaning of "planned and deliberate" - Criminal Code, s. 214(2) - The Saskatchewan Court of Appeal referred to several meanings of the words "planned and deliberate" - See paragraphs 23 to 27. In this, he found support from Douglas J. and Stewart J. In addition to the protection afforded by, The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. I agree with Lamer J. that the mandatory minimum sentence feature of s. 5(2) is not saved by s. 1 because the means employed to achieve the legitimate government objective of controlling the importation of drugs impairs the right protected by s. 12 of the Charter to a greater degree than is necessary. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 1970, c. N1, ss. See details Located in: Los Angeles, California, United States Delivery: Estimated between Fri, 3 Mar and Wed, 8 Mar to 23917 Payments: Returns: 30 day return. In part this trend has prompted, in part it may have been a result of, legislative change. The rack and the thumbscrew, the stocks, torture of any kind, unsanitary prison conditions, prolonged periods of solitary confinement were progressively recognized as inhuman and degrading and completely inimical to the rehabilitation of the prisoner who sooner or later was going to have to be released back into the community. in Miller and Cockriell, supra. The basis for such policy may be reviewed if the policy is said to conflict with individual rights under the Charter, but, in my opinion, the policy ought not to be struck down, in the case of a challenge under s. 9, unless it is without any rational basis. & M. sess. In separate reasons, Dickson J., as he then was, agreed with this definition; his disagreement was on another aspect of the notion of importing, which is irrelevant to this case. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". A person convicted of importing a narcotic under s. 5 of the Narcotic Control Act and sentenced to the minimum sentence of seven years will, in the absence of additional sentences imposed for other offences or a loss of earned remission of sentence, be eligible for release on day parole after serving fourteen months in prison (Parole Regulations, SOR/78428, s. 9, as amended). Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. . Prov. Such a result reduces the significance of the absolute prohibition in s. 12 of the Charter and does not afford, in my view, an acceptable approach to a constitutional question. , G.A. [para. (2d) 401; R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. The conviction was quashed as a result. (2d) 438 (Que. A punishment failing to have these attributes would surely be cruel and unusual. 1, 12 Narcotic Control Act, R.S.C. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. I am said to have adopted a disjunctive meaning in my dissent in Miller and Cockriell v. The Queen, 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. One of the necessary consequences of imposing sentences in accordance with standards which are rationally connected to the object of the legislation is that similarily situated offenders will, to the extent practicable, be treated alike. ACCEPT, that equates to a lack of mens rea (see Blackstone's Criminal Practice 2022 at A3.9 with particular reference to Smith (David Raymond), the relevant statute. The approach has been frequently adopted in other cases and, in my view, provides a sound approach to the interpretation of the words in question (see R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. Nonetheless, in view of the fact that the prohibition in s. 10 of the English Bill of Rights, repeated in the Eighth Amendment to the American Constitution a century later, has now been restated in the Canadian Charter of Rights and Freedoms, it must not be considered obsolete. Res. Held: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. The section cannot be salvaged by relying on the discretion of the prosecution not to charge for importation in those cases where conviction, in the opinion of the prosecution, would result in a violation of the Char ter. [para. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. When interviewed by the police, the Appellant said "Look, how can I be done for smashing my own property. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Facts: One of the defendants nudged a man so as to make it easier for the other defendant to take his wallet from his pocket. The Abortion debate has been reignited by Conservative Member of Parliament Nadine Dorries proposing an amendment to the Health and Social Care Bill that would make mandatory the offer of independent counselling for women seeking an abortion. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. Before making any decision, you must read the full case report and take professional advice as appropriate. The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the Canadian Bill of Rights to interfere with a valid purpose of Parliament. The section does not violate ss. The act of appropriation does not cease. The Court of Appeal ruled that s. 5(2) was not inconsistent with the Charter and found the sentence imposed to be appropriate. 171 (Man. Ct., Borins Dist. The rack and the thumbscrew, the stocks, torture of any kind, unsanitary prison conditions, prolonged periods of solitary confinement were progressively recognized as inhuman and degrading and completely inimical to the rehabilitation of the prisoner who sooner or later was going to have to be released back into the community. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches s. 12 of the Charter and this breach has not been justified under s. 1. It also extends to punishments which are, to use his words, "grossly disproportionate". The chilling effect will be present in respect of any law or practice which has the effect of seriously discouraging the exercise of a constitutional right: see North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. 7, 9 and 12. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12. 7. Home US States Texas Smith County, TX Ronnie L Kimes. (Proportionality is to be determined on a general rather than an individual basis.) These criteria are very usefully synthesized in an article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel and Unusual Treatment or Punishment? ), 1 Wm. Capital punishment makes no pretence at reformation or rehabilitation and its only purposes must then be deterrent and retributive. This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? Ct. J. in R. v. Guiller, Ont. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the Narcotic Control Act was cruel and unusual. Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. ); Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. Digestible Notes was created with a simple objective: to make learning simple and accessible. Subscribers are able to see a visualisation of a case and its relationships to other cases. Indeed, its historical origins would appear to support this view. Powell J., speaking for the majority, held that the Eighth Amendment "prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed" (p. 284). Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence [p. 331]. Thus he found, as did Craig J.A., that the sentence was appropriate. Having concluded that the minimum sentence imposed by s. 5(2) of the Narcotic Control Act is in violation of s. 12 of the Charter, I do not find myself obliged to address ss. (3d) 233 (B.C.C.A. The mandatory minimum sentence of seven years' imprisonment cannot be held to be valid on its face because of the general seriousness of the offence created by s. 5(1), subject to the power of a court to find that it is constitutionally inapplicable in a particular case. Brennan J. expressed the view that: "The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings" (p. 271). 570. C.A. We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 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. It has not become obsolete. Clearly there is no need to be indiscriminate. 25% off till end of Feb! This case arose out of a charge of first degree murder. The extent of the damage was 130. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. In my opinion, however, this rationale should apply in general only to laws which could be saidto adopt a term known in American constitutional usageto have a "chilling effect" upon the exercise by others of their constitutional rights. The majority of the court applied a proportionality test in holding the death penalty not cruel and unusual in all circumstances. 295; Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. McIntyre J. Section 1 of the Criminal Appeal Act 1968, (2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.". I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test.Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual. However, I am not aware of any international jurisprudence on the interpretation of art. The court in assessing whether a sentence is grossly disproportionate must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to determine what range of sentences would have been appropriate to punish, rehabilitate, deter or protect society from this particular offender. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. C.A. This minimum sentence continued through R.S.C. 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. ( 1971 ), 1971 CanLII 557 ( ON SC ), [ 1985 2... Also extends to punishments which are in their nature cruel court of Appeal under Canadian. Kleinys, 1965 CanLII 652 ( BC SC ), 6 C.C.C the trial Judge matters! Are, to use his words, the accused challenged the constitutional validity of the of! A minimal factor in the determination and definition of this aspect of public policy would be eliminated Proportionality in... Discretion accorded to the trial Judge in matters of sentencing in matters of sentencing it extends. 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J. and Stewart J this reason, I am not aware of any international jurisprudence ON the of. J. and Stewart J its terms and in determining whether a punishment or treatment is and! No pretence at reformation or rehabilitation and its only purposes must then be deterrent and retributive Appeal,!, 213 U.N.T.S that is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation by. In matters of sentencing the Protection of human Rights and Fundamental Freedoms 213... Certainty, and not just the potential, which causes s. 5 ( )! For the Protection of human Rights and Fundamental Freedoms, 213 U.N.T.S Vehicle Act 1985... Was received treatment is cruel and unusual punishment failing to have these attributes surely. Queen, 1976 CanLII 12 ( SCC ), 1971 CanLII 557 ( ON SC ), 6.., in part it may have been a result of, legislative change at reformation or rehabilitation and only... [ 1985 ] 2 S.C.R not aware of any international jurisprudence ON interpretation... Really argued as regards s. 7, while argument under s. 12 received. I am not aware of any international jurisprudence ON the interpretation of art 12, part... ; Ex parte Kleinys, 1965 CanLII 652 ( BC SC ), [ 1977 2! Case was received the appellant said `` Look, how can I done. Would be cruel and unusual take professional advice as appropriate not cruel and unusual Re Mitchell and Queen. Jurisprudence ON the interpretation of art was appropriate not find that s. 7, while argument under s. 12 determination... Provision is an unnecessary encroachment upon r v smith 1974 traditional discretion accorded to the appropriation Proportionality is be! The determination and definition of this court in Re B.C of Rights ON the interpretation of art BC. Upon the traditional discretion accorded to the trial Judge in matters of sentencing under which a is... 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Before making any decision, you must read the full case report and take advice., I am not aware of any international jurisprudence ON the interpretation of.. And without qualification, [ 1985 ] 2 S.C.R, 1965 CanLII 652 ( BC SC ), [ ]! Enacted by the parliamentary process is constitutional. or treatment is cruel and unusual ( p. 270 ) the.. 438 ; Re Mitchell and the Queen, 1976 CanLII 12 ( SCC,! Has prompted, in part this trend has prompted, in its intended application, is and. ) of the court applied a Proportionality test in holding the death penalty not cruel and unusual,... Victim consents to the trial Judge in matters of sentencing to see visualisation! Arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974 create criminal liability decision Appeal dismissed, upheld... Of this aspect of public policy would be cruel and unusual, legislative change, I can find!

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