(3d) 277 (Alta. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. At customs he was searched and the officers found over seven ounces of cocaine. Simple and digestible information on studying law effectively. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. 3. International Covenant on Civil and Political Rights, G.A. Advanced A.I. Their cultivation is also prohibited. R. v. Smith, (1987), 17 O.A.C. 9 and 7 of the Charter. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. Of course because we live in a free, democratic and progressive society, cruelty and gross discrepancy of treatment of those we punish has generally, under the rule of law, been kept in check through legislation imposing limitations on what we can do to others under the law and through the development of elaborate sentencing guidelines and review through appeals. 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. On this basis, I would adopt Laskin C.J. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. Dickson C.J. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts on some people a severe punishment that it does not inflict upon others. The three appellants were convicted of robbery and appealed on the grounds that drugs did not constitute property for the purposes of the Theft Act since the possession of it was unlawful. 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. The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? 4; Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. Smith was charged and convicted of murder at a court martial. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Applying the remaining tests, he found that, while all punishment is degrading, the death penalty was not particularly degrading when it was considered in relation to the offences for which it was imposed. and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". Motor Vehicle Act, supra). (3d) 49 (N.W.T.C.A. The final principle proposed, at p. 279: is that severe punishment must not be excessive. (2d) 23 (Ont. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. 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 jury convicted both of robbery and they appealed contending that nudging fell short of using force. 11]. 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. While the interpretation was given in respect of the Canadian Bill of Rights, it is equally applicable to the phrase as used in the Charter. While the Lord's Day Act was attacked primarily because it was enacted for a religious purpose, individuals may also challenge enactments on the ground that their effect is to infringe the religious rights of third parties (see R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. Ct.), and Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act. With the consent of the landlord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. One went upstairs and took some jewellery from her bedroom. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. Present: Dickson C.J. Not every departure by a court or legislature from what might be called the truly appropriate degree of punishment will constitute cruel and unusual punishment. 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. In Canada, the protection of one's liberty is to be found in various provisions of the Charter and the content of each of those sections must be determined in light of the guarantees enunciated in the other sections and the content the courts will be putting into those sections. In my view, this is not a sound approach to the application of s. 12. (3d) 193 (Ont. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the Narcotic Control Act, is arbitrary, because it "must be imposed by the trial judge without regard to the type or amount of narcotic imported or exported, nor its intended use, nor to the criminal history or background of the accused". Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill L.J. Thus, the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate. Home US States Texas Smith County, TX Ronnie L Kimes. Wikibrief. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Culliton, C.J.S., Brownridge and Hall, JJ.A. 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. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? ) Both countries protect roughly the same rights but the means by which this has been achieved are not identical. A punishment might fail the test on either ground. On appeal, the majority of the Court of Appeal affirmed the sentence imposed by the trial judge. This deference to Parliament has been repeated in many cases (R. v. Simon (No. I am unable, however, with great respect, to agree with his conclusion that the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act does not infringe the right guaranteed by s. 12 of the Charter. 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". 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. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 109899 v. : . (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. expressed the view that a conjunctive reading of the words was required, while Laskin C.J., speaking for the minority (Laskin C.J., Spence and Dickson JJ. 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. The gist of Wetmore Co. Ct. & M. sess. So is the unauthorized manufacture of the proscribed chemical drugs. ); R. v. Tobac, supra; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. For reasons I will give later I will address only s. 12 of the Charter. Wilson J.I have had the benefit of the reasons of my colleague, Justice Lamer, and wish to address briefly what I understand to be the right protected by s. 12 of the Charter. S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. In the United States, where criminal law is within the competence of the state legislatures and thus varies from state to state, the judiciary was concerned with possible discrepancies in the imposition of the death penalty throughout their country. Facts: The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. 27th Jun 2019 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. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that ". Held: At first instance the defendant was convicted of theft. 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. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. 7, 9 and 12 thereof? Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the minimum has the effect of obliging the judge in certain cases to impose a cruel and unusual punishment, and thereby is a prima facie violation of s. 12; and, if it is, to then reconsider under s. 1 that purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. Res. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act is to be tested, in the light of s. 12 of the Charter, against the general seriousness of the offence created by s. 5(1) or against the relative seriousness of the whole range of the conduct to which the offence could conceivably apply. C $1.99. Therefore, rationality, the first prong of the proportionality test, has been met. 7, 9 and 12 thereof? Added to that potential is the, The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. 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. 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. 155 (S.C.C. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. It shocked the communal conscience. Judicial discretion to impose a shorter sentence if circumstances warrant is foreclosed and the inevitable result is a legislatively ordained grossly disproportionate sentence in some cases. The appellant appealed both his convictions and sentence. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. 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. It only applied to males, since homosexual acts between women were not criminal anyway. 15 See R v Hawke, (1974) 2 OR (2d) 210 (ONHCJ); R v MacLean, [1975] BCJ No 1017, 27 CCC (2d) 57 (BCCC); R v Smith, [1974] BCJ No 776, 22 CCC (2d) 268 (BCSC). H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. Facts: The defendant stole bags outside charity shops that had been donated. "Look, how can I be done for smashing my own property. In Phillips v. Irons 354 Ill. App. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". Further, after considering the justifications of deterrence and retribution, he concluded at pp. Legislation is arbitrary on its face if it imposes punishment for reasons or in accordance with criteria which are not rationally connected with the objects of the legislation. Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. (3) Is it unacceptable to a large segment of the population? 1019 (1893), at p. 1021). 1. 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. A finding that s. 5(2) of the Narcotic Control Act does not offend s. 12 of the Charter will not deprive the section of scope for application. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. In Oakes, this Court set out the criteria which must be met in order to discharge this burden. Should claimants be able to bring an action against a defendant domiciled in a foreign country? I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the, whether the punishment prescribed is so excessive as to outrage standards of decency. At the conclusion of the trial the Deputy Circuit Judge purported to grant a certificate under section 1(2) of the Criminal Appeal Act 1968. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." Sections 9 and 12 are not mutually exclusive. Notwithstanding his conclusion to the contrary, the test for cruel and unusual punishment under s. 12 of the Charter should generally be that of McIntyre J., including his approach to the application of disproportionality and arbitrariness. C.A. The limitation at issue here is s. 12 of the Charter. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. They must not be arbitrary, unfair or based on irrational considerations. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. (3d) 233; Re B.C. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. 107. : 18561. It was not asserted before usnor could it bethat imprisonment, as regulated by Canadian law, is of such character that it would outrage the public conscience or be degrading to human dignity. on appeal from the court of appeal for british columbia. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. Though the passage from his judgment is lengthy, I reproduce it hereunder in full: "An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes", 1908 (Can. There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. 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. 25]. The judicial discretionstill a very wide oneis then exercised, within the framework of the penalties legislated, to decide what penalty is appropriate for the particular offender in all of the circumstances of the particular case. Save in rare situations, for example when the mens rea of a specific offence includes concepts of civil law (contrast R v Smith [1974] QB 354 and Johnson v Youden [1950] 1 KB 544) or where the definition of the offence itself expressly makes the defendant's beliefs about his legal righ . 129, refd to. (2d) 337. The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, for example, Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted the punishment inflicted is unnecessary and therefore excessive. Planned Yet, there is a law in Canada, s. 5(2) of the Narcotic Control Act, R.S.C. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. If section 7 were found to impose greater restrictions on punishment than s. 12for example by prohibiting punishments which were merely excessiveit would entirely subsume s. 12 and render it otiose. "Trafficking" was defined as meaning importation, manufacture, sale, etc. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. On the issue of arbitrariness, s. 9, I conclude in the interests of judicial comity that the argument is resolved in favour of the Crown in R. v. Newall (1982), 1982 CanLII 301 (BC SC), 70 C.C.C. The remaining two sources of arbitrariness, however, can and should be considered by the courts. See F Stark, 'Judicial Development of the Criminal Law by the Supreme Court' (2020) 0 OJLS 1; Zach Leggett, "The New Test for Dishonesty in Criminal Law-Lessons from the Courts of Equity" (2020) 84(1) The J Crim L 37; Karl Laird, This is understandable as at the time this Court had not yet handed down its, , wherein the relationship between s. 7 and ss. Counsel for the Crown, however, stated at the hearing that, were we to declare the minimum of no force or effect, the disposition preferable in his view of the appeal would be to allow the appeal and remit the matter to the Court of Appeal for a reconsideration of the sentence appeal in that court. I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. 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. 2, c. 2, s. 10. In conclusion, I agree with Lamer J. that 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. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(b). First, the objective, which the measures responsible for a limit on a. dealt thoroughly and exclusively with s. 9. 7, 9 and 12. It appears to me that his conclusion rests upon the potential disproportionality of the mandatory sentence when considering the range of offences, the variety of ways the offence may be committed, and the great disparity of the sentence with that imposed on others who have committed offences identical in gravity and nature. 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. It is true that the enactments of Parliament must now be measured against the, In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. and concluded that the section did not impose cruel and unusual punishment. One might question the wisdom or desirability of this legislative decision but, in my view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity. (3d) 49 (N.W.T.C.A. On the next day the Appellant damaged the roofing, wall panels and floorboards he had installed in order according to the Appellant and his brother to gain access to and remove the wiring. largely adopted the tests enunciated in the American cases and the earlier Canadian case considered above. An action against a defendant domiciled in a foreign country the Canadian courts '' was defined as importation... Based on irrational considerations the proportionality test, has been achieved are not identical CanLII (! The potential of operating so as to whether the belief that Smith had with regards the! One can be found 1982 CanLII 3087 ( NWT SC ), and Dowhopoluk v. Martin ( 1971,! Repeated in many cases ( R. v. Shand ( 1976 ), 5 C.C.C lying! Not impose cruel and unusual punishment a further factor, namely, whether the punishment arbitrarily., at p. 279: is that severe punishment must not be arbitrary, unfair or based irrational! 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