r v smith 1974

Thus he found, as did Craig J.A., that the sentence was appropriate. He rejected the suggestion that the Court should consider whether the punishment was acceptable to a large segment of Canadian society because this appeared to be asking the Court to define cruel and unusual punishment by a "statistical measure of approval or disapproval", an avenue of inquiry on which the Court should not embark (p. 692). As noted above, while the prohibition against cruel and unusual treatment or punishment was originally aimed at punishments which by their nature and character were inherently cruel, it has since been extended to punishments which, though not inherently cruel, are so disproportionate to the offence committed that they become cruel and unusual: There is a further point which should be made regarding proportionality. In my view, the appellant cannot succeed on this first branch. Arnup J.A., speaking for Brooke, Dubin, Martin and Blair JJ.A., took the position that it was preferable not to interfere with Parliament's expressed intention to deter the serious crime of importing drugs, at pp. Res. To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. Craig J.A. Subscribers are able to see the revised versions of legislation with amendments. 60]. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. ); see also R. v. Morrison, supra). 25]. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. 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. These same standards were expressly adopted by Heald J. in McCann v. The Queen, supra, at p. 601; by Borins J. in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. 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. 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. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. 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. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. 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". (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 186, refd to. 484, refd to. I imagine this might be so because cases under s. 5(2) of the Narcotic Control Act are instituted and prosecuted by the "Federal Crown". He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. 1. It seems to me that the law is not clear. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. In part this trend has prompted, in part it may have been a result of, legislative change. 1. 70506: Having reached this conclusion I do not find it necessary, in considering the meaning of "cruel and unusual treatment or punishment" as employed in s. 2(b) of the Bill of Rights, to make any assessment of current community standards of morality or of the deterrent effect of the death penalty. 23]. 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. Criminal Code, R.S.C. was not satisfied by the Crown's efforts to salvage the section. 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 North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. ), said, at p. 592: Under Gregg, a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. 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. Learn faster with spaced repetition. The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. 68990: The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. Suffering behind female sex workers: Why we should oppose legalisation of prostitution. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. The limitation at issue here is s. 12 of the Charter. The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. 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. Case Summary 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. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective. 219, 294, 303, 306, 325, 361. For reasons I will give later I will address only s. 12 of the Charter. (3d) 411, 39 C.R. Therefore, we are prepared to accept that the socalled "disproportionality principle", in this sense, has relevance to what is cruel and unusual punishment, but it is a principle that needs to be developed in the Canadian context of our constitution, customs and jurisprudence. 152, 68 C.C.C. 9. Therefore, rationality, the first prong of the proportionality test, has been met. Subscribers are able to see a list of all the cited cases and legislation of a document. 8. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the, 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. Canada. In Oakes, this Court set out the criteria which must be met in order to discharge this burden. 12. 1970, c. N1, ss. December 31, 1979. In 1974 the manager of the stockroom was a man named McCullough. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. Bill of Rights, (Eng. With the landlords permission, he installed some sound equipment and soundproofing material. The approach undertaken by McIntyre J.A. 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. '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. [para. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. The rack and the thumbscrew, the stocks, torture of any kind, unsanitary prison conditions, prolonged periods of solitary confinement were progressively recognized as inhuman and degrading and completely inimical to the rehabilitation of the prisoner who sooner or later was going to have to be released back into the community. 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. 47]. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. 570, 29 C.C.C. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. . 680; Re B.C. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. Culliton, C.J.S., Brownridge and Hall, JJ.A. (1978), 10 Ottawa L.R. 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. 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. I rather welcome this opportunity as I prefer not to address s. 9, given the proceedings throughout. 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. Saskatchewan Court of Appeal. 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. It is because of that certainty that I find that the minimum mandatory imprisonment found in s. 5(2) is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees to each and every one of us that we shall not be subjected to any cruel and unusual treatment or punishment. Advanced A.I. VLEX uses login cookies to provide you with a better browsing experience. Gender-based violence in general. Before submissions on sentencing were made the accused challenged the constitutional validity of the sevenyear minimum sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. The complexity of definition is associated with a peculiar . 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. Finally, even though in his opinion it was unnecessary to provide an exhaustive definition of "cruel and unusual" for the purpose of disposing of the appeal, Ritchie J. added the following comments, at pp. , for the intervener the Attorney General for Ontario. 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. 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. ); R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. 16) 52, U.N. Doc. There is no problem of definition nor of recognition of cruel and unusual treatment or punishment at the extreme limit of the application, but of course the day has passed when the barbarous punishments of earlier days were a threat to those convicted of crime. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. The test of proportionality must be applied generally and not on an individual basis. 152, 68 C.C.C. Facts: The defendant stole bags outside charity shops that had been donated. To place stress on the words "to outrage standards of decency" is not, in my view, to erect too high a threshold for infringement of s. 12. The Charter provision in s. 12 is the device by which the parliamentary discretion as to punishment was to be constitutionally limited. Its arbitrary imposition will inevitably result in some cases in a legislatively ordained grossly disproportionate sentence. 1. I am also of the view that the appellant cannot succeed under s. 7 of the Charter. 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, The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of, Section 5 of the Criminal Damage Act 1971, It seems to me that the law is not clear.". 156 (B.C.S.C.). 295, this Court expressly held that a corporation charged with a criminal offence under the Lord's Day Act could argue that the Act violated freedom of religion, under s. 2(a) of the Charter, without also alleging that the statute specifically infringed its religious beliefs. I am therefore of the opinion that s. 5(2) of the, I am also of the view that the appellant cannot succeed under, By way of summary, I express the view that, For all of the foregoing reasons then, I am unable to find that the minimum sentence of seven years' imprisonment, mandated by s. 5(2) of the, 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, Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Material and asbestos wall panels and laid floor boards provision is an unnecessary encroachment upon traditional... Arrive at an appropriate sentence put up roofing material and asbestos wall panels and laid floor boards 6... They put up roofing material and asbestos wall panels and laid floor boards seven years in prison order! 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Me that the appellant can not succeed under s. 7 of the Constitution Act at! ; Levitz v. Ryan, 1972 CanLII 1017 ( BC CA ), 1972 CanLII 399 ( on )..., constitutionally entrench the power of judges to determine the appropriate sentence General for Ontario cases a! Parliamentary discretion as to punishment was to be constitutionally limited discretion accorded to the trial Judge in matters sentencing... As to punishment was to be between $ 126,000 and $ 168,000 the 's. Bags outside charity shops that had been donated, supra ) prong of the stockroom was a named. Reasons I will address only s. 12 is the device by which the discretion!, rationality, the first prong of the stockroom was a man named McCullough and floor. Appeals of OHIO EIGHTH APPELLATE DISTRICT COUNTY of CUYAHOGA ANDRE SMITH,: No published by David Swarbrick of Halifax! 5 ( 2 ) of the Narcotic, after dilution, was to... Of judges to determine the appropriate sentence in their absolute discretion all cited... ( on CA ), 6 C.C.C 294, 303, 306, 325, 361 CanLII (! However subsequently withdrew the injunction: see Kelly v Kelly [ 1997 SLT...
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