This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. At customs he was searched and the officers found over seven ounces of cocaine. Relying heavily on American cases dealing with the Eighth Amendment of the Constitution of the United States, which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", and the analysis undertaken by McIntyre J.A. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. In his opinion, the words "cruel and unusual" were to be read disjunctively so that "cruel punishments however usual in the ordinary sense of the term could come within the proscription". Since the appellant does not dispute the constitutionality of the maximum penalty of life imprisonment but only the minimum seven years' imprisonment, the question in issue is therefore limited to whether the concluding six words of s. 5(2) of the Narcotic Control Act will, under certain circumstances, leave the judge no other alternative but that of subjecting those convicted under the section to cruel and unusual punishment. In our view a minimum sentence of seven years for importing a drug contrary to the Act is not so disproportionate to the offence that the prescribed penalty is cruel and unusual. 570, 29 C.C.C. Key point Mistaken belief that damaged property belongs to oneself, even if unreasonable, is a good defence to criminal damage Facts In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. 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. In my view, the appellant cannot succeed on this first branch. L.R. 1970, c. N1 denies the right contained in s. 12 of the Canadian Charter of Rights and Freedoms. After a review of statistics and other data, McIntyre J.A. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. 1970, c. P2, s. 15, as am. 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, Cruel and unusual treatment or punishment is treated as a special concept in the, The expression "cruel and unusual punishment" was first found in the English, How then should the concept of cruel and unusual treatment or punishment be defined? A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. In such a case it would then be incumbent upon the authorities to demonstrate under s. 1 that the importance of that valid purpose is such that, irrespective of the effect of the legislation, it is a reasonable limit in a free and democratic society. The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. , R.S.C. 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. I am substantially in agreement with my colleague, Lamer J. Under s. 12 of the Charter, individuals should be confined to arguing that their punishment is cruel and unusual and not be heard to argue that the punishment is cruel and unusual for some hypothetical third party. This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. Held: Hinks' conviction was upheld. If two offenders have identical histories and characteristics and have committed the same offence in the same circumstances, legislation could not mandate that they be given different punishments. There is a further aspect of proportionality which has been considered on occasion by the American courts: a comparison with punishments imposed for other crimes in the same jurisdiction (Solem v. Helm, 463 U.S. 277 (1983), at p. 291). 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . Is it unusually severe and hence degrading to human dignity and worth? Once there the treatment given was described as palpably wrong. 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 Canadian Charter of Rights and Freedoms. R v Smith [1959] 2 QB 35 CAUSATION Facts The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. 9 and 7 of the Char ter. Therefore, rationality, the first prong of the proportionality test, has been met. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. We wish to draw attention, as we did in the immediately preceding case of. Whilst it can be foreseen that the likely result of an action to actively bring about a termination would result in the same rulings as cases preventing a termination a remarkable case from Chicago, Illinois offers pause for thought. When interviewed by the police, the Appellant said "Look, how can I be done for smashing my own property. 10. 1. For example, the serious hard drugs dealer who is convicted of importing a large quantity of heroin and the tourist convicted of bringing a "joint" back into the country are treated on the same footing and must both be sentenced to at least seven years in the penitentiary. 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. (3d) 353; R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. I am in general agreement with McIntyre J. Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. It also extends to punishments which are, to use his words, "grossly disproportionate". (2d) 23, rev'g (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. Res. 171; Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. He said: First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate theme.g., use of the rack, the thumbscrew, or other modes of torture [p. 330]. Smith's brother lived with him in the flat, and they installed electric wiring, roofing material, asbestos wall panels, and floor boards in part of the flat. And by that I mean that they are cruel and unusual in their disproportionality in that no one, not the offender and not the public, could possibly have thought that that particular accused's offence would attract such a penalty. 3738: We recognize that there could be a punishment imposed by Parliament that is so obviously excessive, as going beyond all rational bounds of punishment in the eyes of reasonable and rightthinking Canadians, that it must be characterized as "cruel and unusual". The Charter limits this power: s. 7 provides that everyone has the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, s. 9 provides that everyone has the right not to be arbitrarily detained or imprisoned, and s. 12 guarantees the right not to be subjected to any cruel and unusual treatment or punishment. 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. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. 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. 1970, c. C-34 - See paragraphs 23 to 27. 1970, c. N1, is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. 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. . Jordan handed over the heroin and they ran off. C.A. There is therefore no basis for allowing the appellant to invoke in the present appeal the rights of a hypothetical third party in order to challenge the validity of legislation. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or cannabis sativa. 3. International Covenant on Civil and Political Rights, G.A. 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. Most of the drugs of vegetable origin are not native to Canada. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. (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. As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. [para. dealt thoroughly and exclusively with s. 9. It has not become obsolete. 384, 13 C.C.C. o R v Ruffell 2003- V injected heroin and became ill. As time passed, the civilizing influence of the late nineteenth and twentieth centuries eliminated, or at least greatly reduced, the danger of such barbarous punishments. The defendant did not tell the manager the cheques were stolen and he had not checked with the bank as he was instructed to do. The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Solicitors for the appellant: Serka & Shelling, Vancouver, Solicitor for the intervener: Attorney General for Ontario, Toronto, Canadian Charter of Rights and Freedoms, ss. 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. (McIntyre J. dissenting): The appeal should be allowed. This is what offends s. 12, the certainty, not just the potential. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. . The limitation at issue here is s. 12 of the Charter. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. I also agree with him that a punishment which is found to be cruel and unusual could not be justified under s. 1 of the Charter. ), refd to. 161. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. FREE courses, content, and other exciting giveaways. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) 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. It recommended substantially more severe penalties for trafficking, with a "compulsory lengthy minimum sentence, increasing for second or subsequent offences". 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. 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. Motor Vehicle Act, supra, at p. 496: In neither case, be it before or after the Charter, have the courts been enabled to decide upon the appropriateness of policies underlying legislative enactments. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. Topics. As I have tried to show, s. 12 was not designed or intended to fit the individual sentencing requirement for each individual; it was intended as an absolute right to all to be protected from that degree of excessive punishment and treatment which would outrage standards of decency. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. Smith was charged with causing criminal damage to certain property. It was important to consider the offence under the Criminal Damage Act 1971: No offence is committed under Criminal Damage Act 1971, section 1(1) where a person damages property belonging to another if he does so in the honest though mistaken belief that the property is his own.. 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. 3233: As Lamer J. has indicated at p. 1069 of his judgment, these are the tests which have been generally applied in the cases heard so far under s. 12 of the Charter. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." 11]. a severe punishment must not be unacceptable to contemporary society" (p. 277). 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". (3d) 49; R. v. Simon (No. 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. (a)authorize or effect the arbitrary detention, imprisonment or exile of any person; (b)impose or authorize the imposition of cruel and unusual treatment or punishment; Sections 7, 9 and 12 of the Charter guarantee the following rights: 7. 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. 1979, c. 288. One must also measure the effect of the sentence actually imposed. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. ), expressed the following view, at pp. Abortion is an emotive topic that never fails to inspire a response regardless of gender. Held: Although their is a traditional view that human corpses cannot belong to anyone, body fluids can be stolen. 27]. Trafficking in any of them is a serious offence. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. This Court's decision in Miller and Cockriell, supra, is the last important decision that addressed s. 2(b) of the Canadian Bill of Rights. ), On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to. Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. 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. This page contains a form to search the Supreme Court of Canada case information database. supra, at pp. The minimum sevenyear imprisonment fails the proportionality test enunciated above and therefore prima facie infringes the guarantees established by s. 12 of the Charter. Plaintiffs donative intent was clear, she argues, had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. Simple and digestible information on studying law effectively. ); R. v. Tobac, supra; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 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. (Proportionality is to be determined on a general rather than an individual basis.) Report of the Canadian Sentencing Commission. 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. R v Smith (David) [1974] QB 354 - Case Summary R v Smith (David) [1974] QB 354 by Will Chen 2.I or your money back Check out our premium contract notes! 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. *Chouinard J. took no part in the judgment. The courts, the, In neither case, be it before or after the. o R v Instan 1893- niece failed to care for aunt after moving in during illness. 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. 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. As a second principle, he was of the view, at p. 274, that: the State must not arbitrarily inflict a severe punishment. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? The Steven John Smith jointly charged is the Appellant's brother. ), 1 Wm. 484, refd to. and Lamer J.: The minimum sentence provided for by s. 5(2) of the, The undisputed fact that the purpose of s. 5(2) of the, The minimum term of imprisonment provided for by s. 5(2) of the, 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, The section, too, cannot be salvaged under, The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under, 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. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. (2d) 158 (B.C.S.C. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. and McIntyre, Chouinard*, Lamer, Wilson, LeDain and LaForestJJ. Take a look at some weird laws from around the world! 3. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. 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. , (Eng. 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. 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. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. In any event, I find it would be dangerous to approach our "cruel and unusual" punishment section on the rationale of equality and conclude that uniformly applied, through mandatory imposition or otherwise, a sentence could no longer, on the basis of arbitrariness, be considered cruel and unusual. Where do we Look for Guidance?" (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) There was a legal obligation to return the money received by mistake. (3d) 256) disposed of ss. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. Abandoning the debate as to whether "cruel and unusual" should be read disjunctively or conjunctively, most courts have clearly taken the Laskin approach as set out in Miller and Cockriell and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Subscribers are able to See the list of results connected to your document through the topics and citations Vincent.! Attention, as am 1982 ), ( 1998 ) 81 O.T.C return the received... ( QB ), 40 C.C.C 81 O.T.C courts are confined to deciding whether the legislation enacted by police. Proportionality is to be determined on a general rather than an individual basis. McIntyre, Chouinard * Lamer... And LaForestJJ Steven John smith r v smith 1974 charged is the Appellant can not succeed on this first branch for. And they ran off are able to See the list of results connected your! 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