In coming to this conclusion, however, I make no assumption as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. The section does not violate ss. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. The judgments of the majority, particularly those of Brennan J. and Marshall J., sought to define a series of principles upon which the constitutional validity of punishments could rest. 102 (B.C.S.C. 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. ); Ex parte Matticks (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. We wish to draw attention, as we did in the immediately preceding case of. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. This legislative determination does not transform the sentencing procedure into an arbitrary process. No discretion to any sentencing authority is permitted, no exception to its application is provided. ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. 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. For example, s. 12 would not be infringed if a judge, after having refused to hear any submissions on sentencing, indicated that he would not take into consideration any relevant factors, but then went on to impose arbitrarily a preconceived but appropriate sentence. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the Narcotic Control Act and was sentenced to eight years in the penitentiary. 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 In that regard, he quoted a passage from, The courts have been given the power under, The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. Subscribers are able to see any amendments made to the case. On the facts, it was the accused's grandmother. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. Trafficking in any of them is a serious offence. ), c. 50 (the first Canadian enactment on the subject), prescribed no minimum prison sentences. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 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. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. 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. 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. However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members, Request a trial to view additional results. Prov. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. If there be a rational reason for the policy then I do not think it is for a judge to say that the policy is capricious, unreasonable or unjustified. The object was to reduce drug addiction by making it hazardous and costly to deal in drugs. 713). It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. 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. Thus, despite the constitutional nature of the Canadian Charter of Rights and Freedoms and the command therein to the courts to oversee the constitutionality of our laws, the approach taken when interpreting laws under the Canadian Bill of Rights, has, to some extent, guided the judiciary when considering a constitutional challenge to laws under the Charter. This minimum sentence continued through R.S.C. Narcotic Control Act, R.S.C. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. Res. 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. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Motor Vehicle Act, supra; and R. v. Oakes, supra, this Court indicated that once there has been a prima facie violation of the Charter the burden rests upon the authorities to salvage the legislative provision in question. 384, 13 C.C.C. 152, 68 C.C.C. 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. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. 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. 783 (C.A. The courts, the, In neither case, be it before or after the. 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. , G.A. 11]. ); R. v. Morrison, supra). o R v Smith [1974] D must know the property belongs to another, or realise that it might and must intend to destroy or damage it, or realise his actions might result in damage or destruction In this case D made honest mistake of civil law so was not liable, did not have MR What is the actus reus of basic arson? Murder - First degree murder, meaning of "planned and deliberate" - Criminal Code, s. 214(2) - The Saskatchewan Court of Appeal referred to several meanings of the words "planned and deliberate" - See paragraphs 23 to 27. Indeed, its historical origins would appear to support this view. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the, , a decision of the Ontario Court of Appeal under the, Macdonald J.A. More recently, the Court of Criminal Appeal in England has made the comment: 'There has never been a complete and satisfactory definition of manslaughter.'. Where do we Look for Guidance? [para. 121; R. v. Simon (No. 's interpretation of the phrase as a "compendious expression of a norm". One must also measure the effect of the sentence actually imposed. 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. At customs he was searched and the officers found over seven ounces of cocaine. Section 1 of the Criminal Appeal Act 1968 provides for an appeal against conviction on indictment, and subsection (2) of that section reads: "(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 part this trend has prompted, in part it may have been a result of, legislative change. These comments clearly demonstrate that Laskin C.J. 2.I or your money backCheck out our premium contract notes! 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. 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. This case, the obvious inspiration for Boston Legal episode Roe v Wade: The Musical, raises two important points: firstly a man deceived into creating a baby still has financial obligations to that child irrespective of deception and secondly even if deception is involved a father still has no right to be consulted in whether the pregnancy is terminated or not. 213 ; (1961), 6 Crim. 1. C.A. 1952, c. 201, s. 4. The soldier died. 16970; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Per La Forest J.: While in substantial agreement with Lamer J., nothing was said about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. While the interpretation was given in respect of the. It must be remembered that s. 12 voices an absolute prohibition. I would agree with Laskin C.J. (2d) 438 (Que. 15 See R v Hawke, (1974) 2 OR (2d) 210 (ONHCJ); R v MacLean, [1975] BCJ No 1017, 27 CCC (2d) 57 (BCCC); R v Smith, [1974] BCJ No 776, 22 CCC (2d) 268 (BCSC). It has been aptly observed that 'Of all crimes manslaughter appears to afford most difficulties of definition'. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. She had noticed that she had received more than she was entitled to but did not say anything to her employer. 1 (B.C.C.A. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. I will therefore address the question of cruel and unusual punishment under s. 12 of the Charter. 1970, c. P2, s. 15, as am. 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. 62]. It is not until the enactment of our own Canadian Bill of Rights, more particularly s. 2(b), that the courts addressed the meaning of those very words, cruel and unusual punishment. Culliton, C.J.S., Brownridge and Hall, JJ.A. 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. 222 (1950), art. 219, 294, 303, 306, 325, 361. (2d) 213 (S.C.C. 10. . 320 N.E.2d 668 (1974). in R. v. Shand, supra. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. (3d) 1 (F.C.T.D. Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. 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. 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 Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. 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. These matters in my view raise what are essentially questions of policy and as such they are of necessity considerations effecting the decision of Parliament as to whether or not the death penalty should be retained;. R. v. Wong (1978), 41 C.C.C. On this basis, I would adopt Laskin C.J. Therefore when a cruel and unusual punishment is inflicted it will often be the result of a disregard for those laws and guidelines and as such will be the result of arbitrariness in the choice of the punishment. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. I should add that, in my view, the minimum sentence also creates some problems. Where Do We Look for Guidance?" The courts, on the other hand, in the actual sentencing process have a duty to prevent an incursion into the field of cruel and unusual treatment or punishment and, where there has been no such incursion, to impose appropriate sentences within the permissible limits established by Parliament. The mandatory feature of s. 5(2) is not saved by s. 1 because the means employed to achieve the legitimate government objective of controlling the importation of drugs impairs the right protected by s. 12 of the Charter to a greater degree than necessary. 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. A punishment might fail the test on either ground. 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. 2, c. 2, which states: 10. 16) 52, U.N. Doc A/6316 (1966), art. 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. (3)The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. Do you have a 2:1 degree or higher? Is it in accord with public standards of decency or propriety? ) That excessive Bail ought not to be required, nor excessive Fines imposed; 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. Having concluded that the minimum sentence imposed by s. 5(2) of the Narcotic Control Act is in violation of s. 12 of the Charter, I do not find myself obliged to address ss. 471, perMcIntyre J., speaking for the majority, at pp. However, the potential that such a person be charged with importing is there lurking. 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. 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. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. 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. (3d) 306; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 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. The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. 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. (2d) 316; R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. 217 A (III), U.N. Doc A/810, at 71 (1948), art. Per 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 s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. , Eighth Amendment, Fourteenth Amendment. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1. Dist. However, the sevenyear minimum prison term of s. 5(2) is grossly disproportionate when examined in light of the wide net cast by s. 5(1). Therefore, rationality, the first prong of the proportionality test, has been met. The purpose of this piece is examine what rights, if any, a would be father has in the decision making process and whether in light of American jurisprudence there is any circumstance where fathers should have the right to be consulted. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. I am, with all respect for the views of my colleagues, unable to reach their conclusion for reasons which I will endeavour to set out. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. The question of law in this appeal arises in this way. 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". ); R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. His conclusion that a predetermination of a sentence by Parliament is arbitrarily imposed, if right, would mean that all minimum sentences are invalid and probably also all maximum sentences. [para. 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. 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. The phrase as a `` compendious expression of a norm '' of such sentence! 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