In my view, the appellant cannot succeed on this first branch. 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. 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). 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. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. 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. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. R v Smith [1974] QB 354, [1974] Crim. (McIntyre J. dissenting): The appeal should be allowed. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of coldblooded nonusers), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act. Abortion is an emotive topic that never fails to inspire a response regardless of gender. 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 Nevertheless, leave to appeal was granted and the constitutional question was stated. A husband sought injunctive relief to restrain the defendants from terminating his estranged wifes pregnancy in Paton v Trustees of the British Pregnancy Advisory Service [1979] QB 276. A large degree of latitude must, therefore, be permitted to Parliament in determining the appropriate punishment, particularly where the question is not the nature of the punishment but only its extent. 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. 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. , for the intervener the Attorney General for Ontario. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. 8 On medical assessments of disability in this context, see e.g. 1970, c. C-34 - See paragraphs 23 to 27. Is it unusually severe and hence degrading to human dignity and worth? I should add that, in my view, the minimum sentence also creates some problems. The minimum will surely deter people from importing narcotics. 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". Advanced A.I. ); Re Mitchell and The Queen, supra; Re Moore and The Queen, supra; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434: I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness. Dickson J., as he then was. The expression "cruel and unusual punishment" was first found in the English Bill of Rights of 1688, 1 Wm. Theme by SiteOrigin. An overview of the cases since decided under, and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (, Relying on the guidelines enunciated under the, This deference to Parliament has been repeated in many, It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. A meaning must be ascribed to it. VLEX uses login cookies to provide you with a better browsing experience. Adopting Laskin C.J. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. The Charter provision in s. 12 is the device by which the parliamentary discretion as to punishment was to be constitutionally limited. ), c. 35, was introduced and passed. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. Penitentiary Act, R.S.C. 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. (3d) 324 (Ont. This is what offends s. 12, the certainty, not just the potential. Even though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. The question of law in this appeal arises in this way. With respect to the first, I agree with Lambert J. in the Court of Appeal that this is not a matter which can properly be considered by the courts. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences per se would affect all those laws. He appeals against that conviction upon a question of law. 295, speaking for the majority of this Court, stated at p. 331: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. 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. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). 16) 52, U.N. Doc. Summary: This case arose out of a charge of first degree murder. The purpose of a given importation, such as whether it is for personal consumption or for trafficking, and the existence or nonexistence of previous convictions for offences of a similar nature or gravity are disregarded as irrelevant. . 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. 1952, c. 201, s. 4. 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. 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. Prov. 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. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? It is apparent, and here no evidence is needed for we "should not be ignorant as judges of what we know as men" (Frankfurter J. in Watts v. Indiana, 338 U.S. 49 (1949), at p. 52), that the minimum sentence provided in s. 5(2) of the Narcotic Control Act has not reduced the illicit importation of narcotics to the extent desired by Parliament and probably no punishment, however severe, would entirely stem the flow into this country. This point was made by Stewart J. in, The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the, 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. Our society has always recognized that it is necessary to suppress social evils by enacting laws and that to secure compliance with the law, punishment must be imposed on those who violate the law. I put the flooring and that in, so if I want to pull it down its a matter for me.". This Court has already had occasion to address s. 1. Each of the nine members of the United States Supreme Court wrote separate reasons, the majority holding that the imposition of the death penalty under a variety of state statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. FREE courses, content, and other exciting giveaways. R v Smith, Plummer and Haines [2011] EWCA Crim 66, [2011] Crim LR 719. He appeals against that conviction upon a question of law. Everyone has the right not to be arbitrarily detained or imprisoned. Those nonusers, who import and traffic in such noxious drugs as heroin, are slave masters and responsible not only for the destruction of numerous human beings, but also for the very extensive criminal activity which is spawned by the drug trade. Sentencing Reform: A Canadian Approach. 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. 222 (1950), art. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. 171; Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.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. 8 to 14 are at issue, in light of s. 7 (see Re B.C. (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. 680, was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. In so doing, the courts will apply the general principles of sentencing accepted in the courts in an effort to make the punishment fit the crime and the individual criminal. 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. 16) 52, U.N. Doc A/6316 (1966), art. McMartin v. The Queen, [1964] S.C.R. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., supra; Re B.C. Of course, Lambert J.A. 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. 25]. 155 (S.C.C. Finally, this punishment was imposed in accordance with standards or principles rationally connected to the purposes of the legislation. The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the Canadian Bill of Rights to interfere with a valid purpose of Parliament. It is conceded that seven years' imprisonment would not be cruel and unusual punishment for many, if not most, conceivable cases of unauthorized importing or exporting of a narcotic. 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. (3d) 256) disposed of ss. It was unexpected and unanticipated in its severity either by him or by them. 129, refd to. What is unconstitutional for one must be unconstitutional for all when charged with the same offence. 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". Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. 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. It is hard to see why adults should not be free to contract at the point of marriage for the financial consequences of any divorce, subject to inbuilt fairness tests. Our academic writing and marking services can help you! 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, . Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill L.J. 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. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. 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: see Miller and Cockriell, supra; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. [Emphasis in original.]. In his opinion, found at p. 234, s. 5(2) came within these criteria: In my view a compulsory sentence of seven years for a nonviolent crime imposed without consideration for the individual history and background of the accused is so excessive that it "shocks the conscience" and because of its arbitrary nature fails to comport with human dignity. 's interpretation of the phrase as a "compendious expression of a norm". The examples have however exclusively concerned actions seeking the prevention of a termination. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. A sevenyear sentence for drug importation is not. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12. R. v. Smith. Yet the judge has no alternative under the section. I help people navigate their law degrees. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. 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 Char ter. (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. 39]. [para. 7, 9 and 12. Dickson C.J. This ensures that a punishment will not be imposed without reason or standards. R v Nicholls (1874) A person who has undertaken to care for a helpless and infirm relative who has become dependent on him may be held to owe a duty. (3d) 233; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. 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. 3233: Without specific attribution as to the court that suggested it, it would be useful to consider the various specific tests that have been suggested: (1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? ", That certificate, on the face of it, sets out a question of law as the ground on which it is granted. It may well be excessive, but more than excess is required to meet the test of Laskin C.J. In separate reasons, Dickson J., as he then was, agreed with this definition; his disagreement was on another aspect of the notion of importing, which is irrelevant to this case. 214(2) [para. 's concept of "interacting expressions colouring each other" (see Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 121; R. v. Simon (No. 2, c. 2, s. 10. A definition which satisfies this requirement and fits modern conditions is again supplied by Laskin C.J. The Appellant's defence was that he honestly believed that the damage he did was to his own property, that he believed that he was entitled to damage his own property and therefore he had a lawful excuse for his actions causing the damage. Where do we Look for Guidance?" Res. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. The importation of narcotics is not a constitutionally protected activity. Her duties were not quite the same as those of Mr McCullough. (No. [para. 152, 68 C.C.C. 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). In other words, the conditions under which a sentence is served are now subject to the proscription. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 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. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. 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. Yet only one attorney general intervened. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. 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. ); R. v. Tobac, supra; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. 's reasoning concerning s. 12 is in the following passage of his judgment, at p. 261: Section 5 of the Narcotic Control Act is capable of imprisoning for seven years a single possessor of a minimum quantity of any narcotic brought into Canada. 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. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. C.A. These comments clearly demonstrate that Laskin C.J. 1978); and Solem v. Helm, 463 U.S. 277 (1983). on appeal from the court of appeal for british columbia. McIntyre J. I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. R v Smith (1974) - the appellant was a tenant in a ground floor flat. There is an While these expressions provide some assistance in defining the concept of arbitrariness, in my view the most important consideration is whether the punishment is authorized by law and imposed in accordance with standards or principles which are rationally connected to the purposes of the legislation. (3d) 49 (N.W.T.C.A. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. 1970, c. C-34, sect. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. 783 (C.A. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 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. 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. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. I am said to have adopted a disjunctive meaning in my dissent in Miller and Cockriell v. The Queen, 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 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