Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. 8 to 14 are at issue, in light of s. 7 (see Re B.C. 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. 4 (Ont. In Phillips v. Irons 354 Ill. App. o R v Nicholls 1874- child died after moving in with grandmother. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 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. The limitation at issue here is s. 12 of the Charter. Advanced A.I. 129, refd to. With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. (3d) 49; R. v. Simon (No. This was not accepted by the trial judge and Smith appealed the decision. I put the flooring and that in, so if I want to pull it down its a matter for me.". The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. VLEX uses login cookies to provide you with a better browsing experience. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. This legislative determination does not transform the sentencing procedure into an arbitrary process. 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? 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. I would answer the constitutional question as follows: QuestionWhether the mandatory minimum sentence of seven years prescribed by s. 5(2) of Narcotic Control Act, R.S.C. 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 ". (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. 186, refd to. ), refd to. (3d) 411, 39 C.R. Gender-based violence in general. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. Canada. At pages 69394 of his judgment, he states: 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. Stone v Ford (1992) 65 A Crim R 459. 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. 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. How then is this compendious expression of a norm to be defined? The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. (dissenting): Section 12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing or with related social problems. In other words, a punishment, though proportionate to the offence, will be cruel and unusual if it is imposed arbitrarily, unevenly and without reason upon some people and not others. He concluded that capital punishment for murder of a peace officer did not contravene this norm and concurred with his colleagues in dismissing the appeal. The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter. , this Court expressly held that a corporation charged with a criminal offence under the, ). How then is this compendious expression of a norm to be defined? Police v Butler [2003] NSWLC 2. Februar 1975 [3] R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472 R v Smith (Percy) [1976] Crim LR 511, DC 680, was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. 5. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. 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. The concept of cruel and unusual treatment or punishment would be deprived of its special character and would become, in effect, a mere caution against severe punishment. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. On the facts, it was the accused's grandmother. This deference to Parliament has been repeated in many cases (R. v. Simon (No. 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. 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. On appeal to the Saskatchewan Court of Appeal the verdict of first degree murder was set aside and the accused was convicted of second degree murder. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. 7 and 9. First, the measures adopted must be carefully designed to achieve the objective in question. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. Canada. In that regard, he quoted a passage from R. v. Konechny, supra, where Macfarlane J.A., said at p. 254: The courts have been given the power under s. 52 of the Constitution Act, 1982 to review, and in appropriate cases to strike down legislation. While not a precise formula for cruel and unusual treatment or punishment, this definition does capture the purpose and intent of s. 12 of the Charter and is consistent with the views expressed in Canadian jurisprudence on this subject. The Attorney General referred a question to the Court of Appeal. In my view, this section does not, in this case, add anything to the submissions already considered under s. 12 of the Charter. (3d) 26, 2 C.R.R. This Court has already had occasion to address s. 1. , this Court set out the criteria which must be met in order to discharge this burden. 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. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. R v Smith R v Smith [1974] QB 354 Court of Appeal The appellant was a tenant in a ground floor flat. But that does not mean that judges have been authorized to substitute their opinion for that of the Legislature which under our democratic system is empowered to enunciate public policy. Bill of Rights, (Eng. in Miller and Cockriell, supra, Borins Co. Ct. J. said, at p. 216: Thus, two factors to be taken into consideration in determining whether the mandatory minimum sentence in this case constitutes "cruel and unusual treatment or punishment" are the effect of the severity or excessiveness of the penalty in relation to the "dignity and worth of the human person" and the potential for the absence of "equality before the law" resulting from the exercise of prosecutorial discretion resulting, in turn, in an arbitrary punishment. 25% off till end of Feb! This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. 354 (1974) Facts David Smith (defendant) rented a flat in 1970. & M. sess. 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. -they believed they had consent from a person they wrongly . ); R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. L.R. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. In my view, this proposition cannot be accepted. As a second principle, he was of the view, at p. 274, that: the State must not arbitrarily inflict a severe punishment. Summary: This case arose out of a charge of first degree murder. 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. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. The formation of public policy is a function of Parliament. 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, . As far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. (3d) 241 (B.C.C.A. 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. H.C.)), In the early years of the Canadian Bill of Rights, in those rare cases where s. 2(b) was the object of some judicial analysis, the application of the prohibition was either limited to the protection against the infliction of excessive and unusual physical pain (R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. (2d) 564 (Ont. The jury convicted both of robbery and they appealed contending that nudging fell short of using force. For four months the post was not filled. Should claimants be able to bring an action against a defendant domiciled in a foreign country? 10]. ), refd to. Facts: A travel agent received money from clients for deposits for their holidays. A punishment will be cruel and unusual and violate. ) The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. 7, 9 and 12 thereof? The couple did not engage in vaginal penetrative sex. 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. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. He said, at pp. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. An overview of the cases since decided under s. 12 of the Charter reveals that these tests are those substantially resorted to (see for example, Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the, 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. 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. J. I do not think it wise to address s. 9 without the benefit of the views of the courts below with regard to its relationship to s. 7. Is it unusually severe and hence degrading to human dignity and worth? ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. Macdonald J.A. 1970, c. N1, ss. 12. (2d) 438; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. It has not become obsolete. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. FREE courses, content, and other exciting giveaways. The trial judge directed the jury to acquit. Section 12 establishes an outer limit to the range of permissible sentences in our society; it was not intendedand should not be usedas a device by which every sentence will be screened and reviewed on appeal and fitted to the peculiar circumstances of individual offenders. Act, 1985 CanLII 81 ( SCC ), but I doubt whether a precise. The flooring and that in, so if I want to pull it its. 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