Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 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 schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. Their cultivation is also prohibited. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. They must not be arbitrary, unfair or based on irrational considerations. The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. 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. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. 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. it was so unusual as to be cruel and so cruel as to be unusual. Co. Ct., Mossop Co. Ct. J., July 7, 1983, unreported). Held: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. Bill of Rights, (Eng. Held: Hinks' conviction was upheld. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. 102 (B.C.S.C. Res. 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. Smith was charged with causing criminal damage to certain property. In such a case the accused has an interest in having the sentence considered without regard to a constitutionally invalid mandatory minimum sentence provision. I agree with my colleague's proposed disposition of the appeal. Various tests have been suggested in the cases referred to and in the academic commentaries on this subject but not all will be relevant in every case. 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. The object was to reduce drug addiction by making it hazardous and costly to deal in drugs. 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.". In C v S [1988] QB 135 Robert Carver sought injunctive relief to restrain his former girlfriend from terminating the pregnancy on the ground that the foetus was a child capable of being born alive within the meaning of s1(1) of the Infant Life (Preservation Act) 1929. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. ); see also R. v. Morrison, supra). In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. Under the first branch of the test I propose, the appellant would have to show that the length of the sentence would outrage the public conscience or be degrading to human dignity. 152, 68 C.C.C. 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. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. 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. 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. 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. Solicitor for the respondent: Frank Iacobucci, Ottawa. The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. 101. Seller pays for return shipping. (1978), 10, APPEAL from a judgment of the British Columbia Court of Appeal, , dismissing an appeal from sentence imposed by Wetmore Co. Ct. J. and overturning his ruling finding s. 5(2) of the. Advanced A.I. We do not provide advice. I have considered whether that should not be sufficient to sustain the validity, on its face, of the mandatory minimum sentence of seven years' imprisonment, subject to the power of a court in a particular case to find that the mandatory minimum sentence is constitutionally inapplicable because it would in all the circumstances of the case be cruel and unusual punishment. In this, s. 12 differs from many other sections conferring rights and benefits which speak of reasonable time, or without unreasonable delay or reasonable bail, or without just cause. BLOG; CATEGORIES. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. Employing it here, and considering what was said, with respect to the enactment of s. 5(2) of the, Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the, He was uncertain as regards the proper approach to be taken when assessing whether legislation, which, . 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. 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. In the present case Craig J.A. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. 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. He appeals against that conviction upon a question of law. 391, refd to. Subscribers are able to see any amendments made to the case. While no such case has actually occurred to my knowledge, that is merely because the Crown has chosen to exercise favourably its prosecutorial discretion to charge such a person not with the offence that that person has really committed, but rather with a lesser offence. 384, 13 C.C.C. L.Q. Furthermore, in his opinion, there existed "adequate alternatives" to the treatment. R v Denton [1982] 1 All ER 65, [1982] Crim. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment. Simple and digestible information on studying law effectively. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. A narcotic is defined at s. 2 of the Act: "narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule; This definition refers to a schedule which lists some twenty substances and the preparations, derivatives, alkaloids and salts thereof, and for some, such as cannabis, the similar synthetic preparations. 253 and 255). It urged upon us that the imposition of severe punishments on drug importers will discourage the perpetration of such a serious crime. (2d) 86, (N.W.T.S.C. [para. 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. Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. (3d) 306; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. I offer no opinion as to what a court would decide in respect of any of these examples of treatment should a challenge be made. 152, 68 C.C.C. Yet, as Lamer J. points out, s. 5(2) of the Narcotic Control Act precludes the imposition of a sentence less than seven years for the importation of even a minimal quantity of marihuana, a solitary cigarette. [para. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Appellant would not be able to show that the minimum punishment in s. 5(2) of the Narcotic Control Act would outrage the public conscience or be degrading to human dignity, especially when it is considered in the light of the other sentences currently provided for in Canadian law, the length of the sentence actually to be served, and the seriousness of the offence. But I do not share my colleague's anxiety to keep the two sections mutually exclusive. A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. La Forest J.I am substantially in agreement with my colleague, Lamer J. ), 1 Wm. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). R. v. Smith (No. 108; 102 A.R. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. 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. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. 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. This page contains a form to search the Supreme Court of Canada case information database. & M. sess. 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. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. 295, speaking for the majority of this Court, stated at p. 331: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. I am said to have adopted a disjunctive meaning in my, , (see, for example, W. S. Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? The addition of treatment to the prohibition has, in my view, a significant effect. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (2d) 199 (Ont. Where Do We Look for Guidance?" They failed to diagnose that his lung had been punctured. 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. R v Smith (Thomas Joseph), [1959] 2 QB 35, 43 Cr App R 121, [1959] 2 WLR 623, [1959] 2 All ER 193, CCA: chain of causation, homicide R v Smith (1988) 10 Cr App R (S) 434 Canada [ edit] R v Smith (1987), 1 S.C.R. A sevenyear sentence for drug importation is not per se cruel and unusual. For example, a long term of penal servitude for he or she who has imported large amounts of heroin for the purpose of trafficking would certainly not contravene s. 12 of the Charter, quite the contrary. I should add that, in my view, the minimum sentence also creates some problems. Motor Vehicle Act, supra). While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. ), refd to. APPEAL from a judgment of the British Columbia Court of Appeal (1984), 1984 CanLII 663 (BC CA), 11 C.C.C. Abortion is an emotive topic that never fails to inspire a response regardless of gender. The letting included a conservatory. Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence [p. 331]. He nevertheless imposed an eightyear sentence. (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. The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. ); Re Mitchell and The Queen, supra; Re Moore and The Queen, supra; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. 1970, c. N1 denies the right contained in s. 12 of the Canadian Charter of Rights and Freedoms. The appellant pleaded guilty to the offence of importing a narcotic into Canada. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. 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. on appeal from the court of appeal for british columbia. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. 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. J. The appellant appealed both his convictions and sentence. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate. R v Nicholls (1874) A person who has undertaken to care for a helpless and infirm relative who has become dependent on him may be held to owe a duty. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled, In my view, the constitutional question should be answered in the affirmative as regards, (dissenting) This appeal concerns the question whether s. 5(2) of the, As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under. It is generally accepted in a society such as ours that the state has the power to impose a "treatment or punishment" on an individual where it is necessary to do so to attain some legitimate end and where the requisite procedure has been followed. As regards this subject the comments by Borins Dist. (9) Is it unusually severe and hence degrading to human dignity and worth? 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. It is true that the enactments of Parliament must now be measured against the Charter and, where they do not come within the provisions of the Charter, they may be struck down. 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. 334 (CA), R. v. Bowen and Kay, (1988) 91 A.R. 156 (B.C.S.C.). One must also measure the effect of the sentence actually imposed. In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. In that case, all the judges of this Court agreed that capital punishment for murder did not constitute cruel and unusual punishment, but different routes were taken to reach this conclusion. Belonging to Another . 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. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. H.C.), at p. 311; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. 915: hearsay South Africa [ edit] (3d) 129 (N.S.C.A. Ct. J. in R. v. Guiller, Ont. In my view, the fight against the importing and trafficking of hard drugs is, without a doubt, an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom". It was "unusual" because of its extreme nature. 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. For reasons I will give later I will address only s. 12 of the Charter. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. Whatever be the reason, I should not want to decide the validity of all minimum sentences under s. 9 without the benefit of a thorough discussion on these issues and without any argument being made under s. 1 of the Charter. The section, too, cannot be salvaged under s. 1 of the Charter. (2d) 213 (S.C.C. (Photo: Ipshita Banerji) With 11 books and countless columns on Delhi's rich culture and history across major dailies to his credit, Smith is survived by his wife Elvina, and children Enid, Bunny, Esther, Tony and Rodney. 680. 5. 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. 2. Even though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. Smith, R v [2011] 1 Cr App R 30; Turner (No. 7. , R.S.C. 1074; 101 N.R. It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. The prohibition has, in dangerousness, from `` pot '' to offence..., conviction upheld an abortion in 1997 ) of the narcotic, after dilution, was to. 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