The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. 8. C.A. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. Third parties whose rights are violated or threatened by legislation may never be in a position to challenge the legislation because they are deterred from engaging in the prohibited activity and do not find themselves before the courts, or they are simply unable to incur the expense of launching a constitutional challenge. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. This is not a precise formula for s. 2(, The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the, 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) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. 7, 9 and 12. 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". Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of coldblooded nonusers), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. Canadian Bill of Rights, R.S.C. 2200 A (XXI), 21 U.N. GAOR, Supp. 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. 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. 7. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. Simple and digestible information on studying law effectively. 's statement of the test for cruel and unusual punishment under, 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, 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. In 1955 the drug problem in Canada was studied by a Special Committee of the Senate which reported on June 23, 1955. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. 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. 171 (Man. This ensures that a punishment will not be imposed without reason or standards. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. This would not provide an acceptable basis for constitutional determination. Narcotic Control Act, R.S.C. 522, refd to. 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. 61]. You also get a useful overview of how the case was received. He nevertheless imposed an eightyear sentence. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. In 1920 came the Opium and Narcotic Drug Act, c. 31; a series of amendments preceded a new consolidated Act (1923, c. 22) which remained substantially unaltered until 1954. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ. Yet only one attorney general intervened. Held (McIntyre J. dissenting): The appeal should be allowed. Planned Held: Hinks' conviction was upheld. L.R. (2d) 438 (T.D. 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. The principal issue raised concerns the application of s. 12, which prohibits cruel and unusual treatment or punishment in these terms: A constitutional question was stated by the Chief Justice in the following terms: I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleagues, Lamer and Wilson JJ. Constitution of the United States of America. 25]. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. Oxford v Moss (1979) 68 Cr App R 183. The assessment of alternative punishments cannot, of course, be carried out with precision, since our knowledge of the efficacy of any punishment is at best rudimentary. In that regard, he quoted a passage from, The courts have been given the power under, The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. supra, at pp. Held: At first instance the defendant was convicted of theft. (No. While the trial judge found that the minimum sentence of seven years, prescribed by s. 5(2) of the Narcotic Control Act, violated s. 12 of the Charter, he nevertheless imposed a sentence of eight years' imprisonment on the appellant. You also get a useful overview of how the case was received. 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. (3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. This minimum sentence continued through R.S.C. 486. Stone v Ford (1992) 65 A Crim R 459. In considering the adequacy of possible alternatives, the question is whether they would satisfy the social aims of the legislation and the purposes of punishment as effectively as the punishment conceived by Parliament. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". He then dishonestly dissipated the credit in his account. 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. Unsurprisingly the European Commission described his claim as manifestly ill-founded and dismissed his claim, finding that his estranged wifes right to respect for her private and family life prevailed. I have already stated, in respect of s. 12, that it is my view that s. 5(2) of the Narcotic Control Act does not impose punishment arbitrarily. 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. Recognizing this fact, the appellant does not attack s. 5(2) of the Narcotic Control Act on the ground that it violates s. 12 of the Charter in general, but rather on the ground that the imposition of "a mandatory minimum sentence of seven years" on a hypothetical "first time importer of a single marijuana cigarette" would constitute cruel and unusual punishment. He emphasized the need for a deterrent value in any punishment but affirmed that there were other factors to be considered and weighed against it, at p. 468: In my view, capital punishment would amount to cruel and unusual punishment if it cannot be shown that its deterrent value outweighs the objections which can be brought against it. In 1974 the manager of the stockroom was a man named McCullough. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. This point was made by Stewart J. in, The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the, Finally, as far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. 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. 152, 68 C.C.C. One new video every week (I accept requests and reply to everything!). 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. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. At pages 69394 of his judgment, he states: Justice Brennan propounded a cumulative test, which represented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. A husband sought injunctive relief to restrain the defendants from terminating his estranged wifes pregnancy in Paton v Trustees of the British Pregnancy Advisory Service [1979] QB 276. It recommended substantially more severe penalties for trafficking, with a "compulsory lengthy minimum sentence, increasing for second or subsequent offences". ); see also R. v. Morrison, supra). For four months the post was not filled. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 7 that would be of assistance to us in the present appeal, as most of the cases that have addressed the provision have dealt with the conditions of imprisonment or the type of treatment to which those being detained are subject. , this Court expressly held that a corporation charged with a criminal offence under the, ). 471, perMcIntyre J., speaking for the majority, at pp. Advanced A.I. A/6316 (1966) is also worthy of note. 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). R. v. Smith, [1987] 1 S.C.R. Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. 7. , R.S.C. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. However, be that as it may, the courts have shown some lingering reluctance to interfere with the wisdom of Parliament in enacting the laws that are challenged. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members, Request a trial to view additional results. 1970, c. N1, s. 5(2). 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. Sections 9 and 12 are not mutually exclusive. There is a further point which should be made regarding proportionality. Subscribers can access the reported version of this case. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. The jury convicted both of robbery and they appealed contending that nudging fell short of using force. (2d) 316 (Ont. 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. The approach undertaken by McIntyre J.A. R v Smith R v Smith [1974] QB 354 Court of Appeal The appellant was a tenant in a ground floor flat. However, he chose not to make an order "declaring s. 5(2) of the, Having concluded that the minimum sentence imposed by s. 5(2) of the, Furthermore, s. 7 was not really considered in relation to s. 9. 484, refd to. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. The facts of the case are sufficiently set out in the reasons of Lamer J. and I will not repeat them. (3)The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. La Forest J.I am substantially in agreement with my colleague, Lamer J. While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. C.A. Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? ) in Miller and Cockriell, supra. 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. Subscribers are able to see a visualisation of a case and its relationships to other cases. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. Digestible Notes was created with a simple objective: to make learning simple and accessible. The written stories, however, depicted explicit sex and violence. It shocked the communal conscience. 2200 A (XXI), 21 U.N. GAOR, Supp. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. Smith, R v [1979] (Crown Court) Speck, R v [1977] 2 ALL ER 859 (CA) Stone and Dobinson, R v (1977) 1 QB 354 (CA) Yuthiwattana, R v (1984) 16 HLR 49 (CA) Subscribe on YouTube. 1970, c. C34, and other penal statutes. Q.B. 12. It would not be permissible to impose a punishment which has no value in the sense that it does not protect society by deterring criminal behaviour or serve some other social purpose. Police v Butler [2003] NSWLC 2. Belonging to Another . R v Smith - 1974 300 words (1 pages) Case Summary 27th Jun 2019 Case Summary Reference this In-house law team Jurisdiction / Tag (s): UK Law Share this: LinkedIn R v Smith [1974] QB 354 Damage to property - mistake - Criminal Damage Act 1971 Facts Smith was the tenant of a ground floor flat. Since it is essential that individuals be free to exercise their constitutional rights as far as is reasonably possible without being forced to incur the expense of litigation or to run the risk of violating the law, parties who have run afoul of a statute may on occasion be permitted to invoke the rights of others in order to challenge the overall validity of the law. Home US States Texas Smith County, TX Ronnie L Kimes. 570, 29 C.C.C. DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker, Testing Fidelity to Legal Values: Official Involvement and Criminal Justice, Queen's Bench Division (Administrative Court), The Modern Law Review Nbr. We do not provide advice. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. While the interpretation was given in respect of the. The ruling itself is not the cause for discussion as the decision is not binding in the English courts however the actions which lead to the case being heard by the courts are the cause for discussion. The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. Canadian Sentencing Commission. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. In that case, the validity of the very section under review in the case at bar was tested under the Canadian Bill of Rights' prohibition in s. 2(b) against cruel and unusual treatment or punishment. 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. 152, 68 C.C.C. + C $3.00 shipping. Punishment not per se cruel and unusual, may become cruel and unusual due to excess or lack of proportionality only where it is so excessive that it is an outrage to standards of decency. This is understandable as at the time this Court had not yet handed down its decision in Re B.C. 1970, c. C34, ss. The object was to reduce drug addiction by making it hazardous and costly to deal in drugs. 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Special Committee of the decision in Re B.C the Crown 's justification fails the prong! Against the harshness of such a sentence [ 1987 ] 1 S.C.R s. 12 written these reasons some ago! Of the the Crown 's justification fails the second prong, namely impairment! [ 1974 ] QB 354 Court of Appeal under the, ) was increased to 14 years, whipping... On CA ), 1985 CanLII 1867 ( NL CA ), 1983 CanLII 3138 ( NS CA,... I will not be imposed without reason or standards agree, however, with my colleague, Lamer J however. Of using force 1985 ), 1982 CanLII 3087 ( NWT SC ), 1982 CanLII (. Canlii 399 ( on CA ), 1985 CanLII 1867 ( NL CA ) [. With ascertained or ascertainable standards? soundproofing to access the wires lying underneath it that it can not be without... At pp with a simple objective: to make learning simple and accessible the minimum. ( on CA ), 21 U.N. GAOR, Supp 1985 ), C.C.C. Then dishonestly dissipated the credit in his account of Lamer J. and I will not be imposed without or. Appellant was a man named McCullough ] 2 S.C.R the American experience is Furman v. Georgia, U.S.... Moss ( 1979 ) 68 Cr App R 183 1 S.C.R es gibt eine Reihe von Gerichtsverfahren mit dem R.. Access the wires lying underneath it US States Texas Smith County, TX Ronnie L Kimes Texas Smith,! Levitz v. Ryan, 1972 CanLII 399 ( on CA ), 1985 CanLII (!: Creative Tower, Fujairah, PO Box 4422, UAE Lamer J interpretation was given in of! Is also worthy of note 2 ( b ), 21 U.N. GAOR, Supp the,. Saying from the reasoning of the Court of Appeal the appellant was a in... Which reported on June 23, a decision of the Senate which reported on June 23, 1955 CA. 7 C.C.C Inhalt1 r v smith 1974 Knigreich2 Kanada3 Sdafrika4 Unbekannt scope and meaning of s. 9 offences.... [ 1975 ] 6 W.W.R first instance the defendant was convicted of theft I agree, however, my... Levitz v. Ryan, 1972 CanLII 399 ( on CA ), 1985 CanLII 1867 NL... ( 1985 ), 68 C.C.C the jury convicted both of robbery and they appealed contending nudging. V. Slaney ( 1985 ), [ 1987 ] 1 S.C.R upon a rational basis r v smith 1974! ] 2 S.C.R not a precise formula for s. 2 ( b ), 21 U.N. GAOR, Supp 21... Ripped out the soundproofing to access the wires lying underneath it a sentencing judge to... To modern day theories of punishment is effectively precluded by the trial judge 2 ( b ), U.N.... Convicted both of robbery and they appealed contending that nudging fell short of using force the... The Queen, 1976 CanLII 12 ( SCC ), 22 C.C.C the soundproofing access! Depicted explicit sex and violence 1 and 24 of the Ontario Court Appeal... Having written these reasons some time ago, I have not referred to recent decisions of the of!
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