As a second principle, he was of the view, at p. 274, that: the State must not arbitrarily inflict a severe punishment. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. Section 12, in its terms and in its intended application, is absolute and without qualification. 1, 12 Narcotic Control Act, R.S.C. 9. Subscribers are able to see a list of all the documents that have cited the case. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. 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. The judicial discretionstill a very wide oneis then exercised, within the framework of the penalties legislated, to decide what penalty is appropriate for the particular offender in all of the circumstances of the particular case. . 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. (Proportionality is to be determined on a general rather than an individual basis.) Of course because we live in a free, democratic and progressive society, cruelty and gross discrepancy of treatment of those we punish has generally, under the rule of law, been kept in check through legislation imposing limitations on what we can do to others under the law and through the development of elaborate sentencing guidelines and review through appeals. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. We believe that human potential is limitless if you're willing to put in the work. Sir George Baker P in that case said: The Abortion Act gives no right to a father to be consulted in respect of a termination of a pregnancy. 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. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s. 12 of the Charter. In setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offence, the protection of the public, and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the particular accused should be given relatively less weight. 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. We do not provide advice. 9 and 7 of the Charter. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: "sometimes yes, and sometimes no". Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. Digestible Notes was created with a simple objective: to make learning simple and accessible. Research Methods, Success Secrets, Tips, Tricks, and more! Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. The remaining two sources of arbitrariness, however, can and should be considered by the courts. In a summary he wrote, at pp. Section 5(2) of the new Narcotic Control Act contained a minimum penalty of seven years for the offence of importing, and it still does. Their cultivation is also prohibited. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. There was a legal obligation to return the money received by mistake. 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. 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. 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. 63]. 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 direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. 2200 A (XXI), 21 U.N. GAOR, Supp. 320 N.E.2d 668 (1974). The minimum sevenyear imprisonment fails the proportionality test enunciated above and therefore prima facie infringes the guarantees established by s. 12 of the Charter. The final principle proposed, at p. 279: is that severe punishment must not be excessive. After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. , for the intervener the Attorney General for Ontario. 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. 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. We in Canada also have other sections in the Charter to protect the equality of all in face of the law, amongst others, s. 15(1). Yet, as Lamer J. points out, s. 5(2) of the, I disagree, however, with Lamer J. that the arbitrary nature of the minimum sentence under s. 5(2) of the Act is irrelevant to its designation as "cruel and unusual" under s. 12. in Miller and Cockriell, supra. At customs he was searched and the officers found over seven ounces of cocaine. Since they limited their comments to delineating Parliament's purpose, acknowledging it to be valid and then refusing to interfere, little was said by them as regards the meaning of cruel and unusual treatment or punishment. Accordingly, I propose to treat the concluding words "but not less than seven years" in s. 5(2) of the Narcotic Control Act inoperable as being in contravention of s. 12 of the Charter, and hence beyond the power of Parliament. 1970, c. C-34 - See paragraphs 23 to 27. A punishment will be cruel and unusual and violate. ) 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. FOOL-PROOF methods of obtaining top grades, SECRETS your professors won't tell you and your peers don't know, INSIDER TIPS and tricks so you can spend less time studying and land the perfect job. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. (2d) 557; R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. 60]. Take a look at some weird laws from around the world! 7, 9 and 12 of the Charter. R. v. Smith. 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. This point was made by Stewart J. in Gregg, supra, at p. 188, where he stated that if the death penalty were arbitrarily and capriciously imposed, it would be cruel and unusual "in the same way that being struck by lightning is cruel and unusual", even though it is proportionate to the offence of murder. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. She had noticed that she had received more than she was entitled to but did not say anything to her employer. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. R. v. Reynolds, 44 C.C.C. Extract. 1074; 101 N.R. 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. Bill of Rights, (Eng. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. Where Do We Look for Guidance?" Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. On the issue of arbitrariness, s. 9, I conclude in the interests of judicial comity that the argument is resolved in favour of the Crown in R. v. Newall (1982), 1982 CanLII 301 (BC SC), 70 C.C.C. : 18561. Before making any decision, you must read the full case report and take professional advice as appropriate. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. Added to that potential is the certainty that upon conviction a minimum of seven years' imprisonment will have to be imposed. European Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights. 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. Irons understood and agreed. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. Advanced A.I. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. The act of appropriation does not cease. (3d) 306 (Ont. A person convicted of importing a narcotic under s. 5 of the, I turn then to the second test which, of course, overlaps the first in some respects. Because this is not a sentence appeal and because there was no suggestion that the sentence of eight years imposed on the appellant was cruel and unusual, I would normally dismiss this appeal. Case Summary R. v. Widdifield, 6 C.R.L.Q. Sentencing, at the best of times, is an imprecise and imperfect procedure and there will always be a substantial range of appropriate sentences. Seven years, on the other hand, is that excessive and this, in my view, is why it cannot survive the constitutional challenge under s. 12. R. v. Mitchell, [1965] 1 C.C.C. The following constitutional question which was stated by the Chief Justice is, as a result of appellant's having abandoned all others at the hearing, the only issue in this Court: Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. We wish to draw attention, as we did in the immediately preceding case of. (2d) 10, 141 D.L.R. First, the objective, which the measures responsible for a limit on a. Co. Ct.)). 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. 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, . Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. (3d) 193 (Ont. Facts: The defendant, a police woman, received an overpayment in her wages by mistake. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. L.R. Reasons The defense claimed that in order to convict for murder it would have to be proven that it was Smith's actions that caused the death. Thus he found, as did Craig J.A., that the sentence was appropriate. 's concept of "interacting expressions colouring each other" (see. If section 12 were to be construed to permit a trial judge to ameliorate a sentence mandated by Parliament simply because he considered it to be too severe, then the whole parliamentary role with regard to punishment for criminal conduct would become subject to discretionary judicial review. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. 1927, c. 144, s. 4, and R.S.C. R. v. Smith. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. The sevenyear minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. 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. It cannot be said that the Charter sought to effect that purpose by giving an absolute discretion in the matter to the courts. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). I am substantially in agreement with my colleague, Lamer J. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. In any event, Lambert J.A. Where do we Look for Guidance?" 1979, c. 288. Counsel for the Crown, however, stated at the hearing that, were we to declare the minimum of no force or effect, the disposition preferable in his view of the appeal would be to allow the appeal and remit the matter to the Court of Appeal for a reconsideration of the sentence appeal in that court. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. However, when considerations of proportionality arise in an inquiry under s. 12 of the Charter, great care must be exercised in applying the standard of cruel and unusual treatment or punishment. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? 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. Ct. J. in R. v. Guiller, Ont. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Where Do We Look for Guidance?" 7, 9 and 12 thereof? 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. 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. 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 judges who have considered the case, then, are unanimously of the view that a long sentence of imprisonment is appropriate and no one has suggested that the appellant has been sentenced to cruel and unusual punishment. 102 (B.C.S.C. 680. 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. 145. , (Eng. Parliament, in legislating a minimum sentence, merely concluded that the gravity of the offence alone warranted that sentence. 8 On medical assessments of disability in this context, see e.g. It seems to me that the law is not clear. L.Q. A sevenyear sentence for drug importation is not per se cruel and unusual. . I should add that I do not wish this manner of disposition to be taken as any indication whatsoever of what I may think the appropriate sentence in this particular case might be. 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. 171; Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. The appellant pleaded guilty to the offence of importing a narcotic into Canada. ); R. v. Morrison, Ont. 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. I help people navigate their law degrees. The prosecutorial discretion is then exercised in selecting the appropriate charges. [para. There is an Constitution of the United States of America. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. There is a further point which should be made regarding proportionality. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the Canadian Bill of Rights by a narrow construction of what is a quasiconstitutional document. Unsatisfied Mr Paton sought to secure the injunction by arguing that his standing to protect his unborn childs right to life was secured under the right to respect for his private and family life in Paton v United Kingdom [1980] 3 EHRR 408. (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 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. 1970, c. C34, ss. , speaking for the majority of this Court, stated at p. 331: Thus, even though the pursuit of a constitutionally invalid purpose will result in the invalidity of the impugned legislation irrespective of its effects, a valid purpose does not end the constitutional inquiry. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. He said, at pp. Does the punishment go beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives? 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. S. David Frankel and James A. Wallace, for the respondent. I agree with my colleague's proposed disposition of the appeal. In my view, the appellant cannot succeed on this first branch. Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. H.C.), at p. 311; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". The judges were also concerned with the fact that the law often leaves in the U.S. "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was re flected in the ban against `cruel and unusual punishments' contained in the Eighth Amendment" (per Douglas J. in Furman v. Georgia, 408 U.S. 238 (1972), at pp. As stated by the majority of this Court in Re B.C. The mandatory imposition of the minimum sevenyear sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. (3d) 336 (Ont. App. 222 (1950), and art. Given that situation, the disparity is so gross it is shocking to contemporary society, is unnecessary in narcotic control and results, therefore, in a punishment which is cruel and unusual. This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. It was therefore open to our courts to interpret the laws of Canada and to choose between various meanings so as to avoid the infliction of cruel and unusual punishment. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. Most of the drugs of vegetable origin are not native to Canada. 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. The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. Remedy will then flow from s. 24. Under s. 5(2) of the Act, punishment continues to be imposed for reasons which are rationally connected with the objects of the legislation, that is, the suppression of the illicit traffic in drugs. (2d) 401; R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. The judgment of Dickson C.J. . The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. I believe this is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment. 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. It was unexpected and unanticipated in its severity either by him or by them. The trial judge directed the jury to acquit. 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. 484, refd to. 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. 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. (3d) 129 (N.S.C.A. It may test public opinion, review and debate the adequacy of its programs, and make decisions based upon wider considerations, and infinitely more evidence, than can ever be available to a court. Per Dickson C.J. 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