Facts: The defendant, a police woman, received an overpayment in her wages by mistake. (2d) 196 (B.C.C.A. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, 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. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. He took the car without paying for the repairs. Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it [p. 332]. 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. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. One group of offences was to import, manufacture, sell, have in possession or take from place to place in Canada any drug; the penalty was a fine not exceeding $500 or imprisonment for not more than one year, or both. 161. Facts: The two defendants broke into a woman's home. Yet, there is a law in Canada, s. 5(2) of the. The inclusion of the word "treatment" in the Charter has advanced this broadening process for the nature and quality of treatment or conditions under which a sentence is served are now subject to the proscription. (3d) 193 (Ont. Tel: 0795 457 9992, or email david@swarb.co.uk, 69-71 Gloucester Terrace Westminster : London (Service Charges): LVT 1 Jun 2015, British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. 570, 29 C.C.C. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. & M. sess. In such a case the accused has an interest in having the sentence considered without regard to a constitutionally invalid mandatory minimum sentence provision. This case arose out of a charge of first degree murder. (3d) 363 (N.S.C.A. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. No issue arises on this point in this case. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. 47]. & M. sess. (2d) 557 (N.W.T.S.C. In a summary he wrote, at pp. 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. 2200 A (XXI), 21 U.N. GAOR, Supp. (2d) 23 (Ont. In Phillips v. Irons 354 Ill. App. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. 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. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. 1970, c. Nl, as amended, infringes ss. The Steven John Smith jointly charged is the Appellant's brother. A sevenyear sentence for drug importation is not per se cruel and unusual. Moreover, a wide discretion remains with the trial judge to consider the particular circumstances of the accused in determining whether a lesser sentence than the maximum sentence of life imprisonment should be imposed. . We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. Subscribers are able to see the revised versions of legislation with amendments. (2) Is it unnecessary because there are adequate alternatives? Parliament has determined that a minimum sentence of seven years' imprisonment is necessary to fight the traffic in narcotics. Of course, the means chosen do "achieve the objective in question". Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. Belonging to Another . 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. The Court there found that the sevenyear minimum in s. 5(2) of the Narcotic Control Act, the same provision under consideration in this appeal, was "not so disproportionate to the offence that the prescribed penalty [was] cruel and unusual". 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. In short, they must be rationally connected to the objective. The facts of the case are sufficiently set out in the reasons of Lamer J. and I will not repeat them. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches, Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. Cruel and unusual treatment or punishment is treated as a special concept in the Charter. 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. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. In other words, a punishment, though proportionate to the offence, will be cruel and unusual if it is imposed arbitrarily, unevenly and without reason upon some people and not others. R. v. Smith. APPEAL from a judgment of the British Columbia Court of Appeal (1984), 1984 CanLII 663 (BC CA), 11 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. Answer The mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. Dist. I am substantially in agreement with my colleague, Lamer J. Finally, this punishment was imposed in accordance with standards or principles rationally connected to the purposes of the legislation. 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. It provides that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. S. David Frankel and James A. Wallace, for the respondent. 713). Wikibrief. Where Do We Look for Guidance?" 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. He would have imposed a sentence of five years' imprisonment. 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. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 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. The concept of cruel and unusual treatment or punishment would be deprived of its special character and would become, in effect, a mere caution against severe punishment. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. The gist of Wetmore Co. Ct. (7) Is it in accord with public standards of decency or propriety? R v Pittwood (1902), R v Smith (1869) One new video every week (I accept requests and reply to everything!). R v Smith [1974] QB 354, 360. We wish to draw attention, as we did in the immediately preceding case of. 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. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. While there can be no doubt of its effect on the person who suffers the punishment, to have a social purpose in the broader sense it would have to have a deterrent effect on people generally and thus tend to reduce the incidence of violent crime. 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. MR. J. RYLANCE appeared on behalf of the Appellant. o R v Instan 1893- niece failed to care for aunt after moving in during illness. Where do we Look for Guidance?" 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. As stated by the majority of this Court in Re B.C. . Yet only one attorney general intervened. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. Planned The prohibition is in absolute terms. One might question the wisdom or desirability of this legislative decision but, in my view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity. It is true, in general, that when a judge imposes a sentence, he considers the nature and gravity of the offence, the circumstances in which it was committed, and the character and criminal history of the offender, all with an eye to the primary purposes of punishment: rehabilitation, deterrence, incapacitation, and retribution. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. 2023 Digestible Notes All Rights Reserved. I would add, in so far as the question of interest or standing discussed by McIntyre J. is concerned, that I am of the opinion that an accused should be recognized as having standing to challenge the constitutional validity of a mandatory minimum sentence, whether or not, as applied to his case, it would result in cruel and unusual punishment. Furthermore, s. 7 was not really considered in relation to s. 9. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. As indicated above, s. 12 is concerned with the effect of a punishment, and, as such, the process by which the punishment is imposed is not, in my respectful view, of any great relevance to a determination under s. 12. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. Most of the drugs of vegetable origin are not native to Canada. 2200 A (XXI), 21 U.N. GAOR, Supp. The act of appropriation does not cease. Whatever be the reason, I should not want to decide the validity of all minimum sentences under s. 9 without the benefit of a thorough discussion on these issues and without any argument being made under s. 1 of the Charter. Research Methods, Success Secrets, Tips, Tricks, and more! The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. (2d) 199 (Ont. I am in general agreement with McIntyre J. I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. . The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. (3d) 49; R. v. Simon (No. Stone v Ford (1992) 65 A Crim R 459. 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. R. v. Smith (1980), 1 Sask.R. In his opinion, the non constitutional nature of the, 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(, In my opinion the words "cruel and unusual" as they are employed in s. 2(, In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. 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. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Edward Smith, a twenty-seven-year-old man with multiple convictions for drug-related offences, was arriving back in Canada from Bolivia. 1970, c. P2, s. 15, as am. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. Without addressing the question whether the Canadian Bill of Rights created new rights, Beetz J. concurred in RitchieJ. R v Smith (1974) - the appellant was a tenant in a ground floor flat. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. ); R. v. Morrison, supra). Yet the judge has no alternative under the section. 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. I should add that, in my view, the minimum sentence also creates some problems. While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. Ct., Sept. 23, 1985, unreported, provide a good example, at p. 15: 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. Report of the Canadian Sentencing Commission. r v smith (john) [1974] 1 all er 376 r v bourne [1938] 3 all er 615 r v d [1984] 3 wlr 186 r v reid [1972] 2 all er 1350 r v timmins [1858-61] 8 cox cc 401 r v robins [1884] 174 er 890 r v white [1871] lr 1 ccr; 12 cox cc 83 queen v papadimitropulous kaitamakyi v r r v flattery r v linekar r v marsden r v pressy alawusa v odusote bolduc & . Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. 5 of the Universal Declaration of Human Rights (G.A. This Court has already had occasion to address s. 1. 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. 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. (1978), 10 Ottawa L. Rev. Murder - First degree murder, meaning of "planned and deliberate" - The accused was convicted of first degree murder - The Saskatchewan Court of Appeal set aside the conviction because the killing resulted from a sudden impulse - The Court of Appeal stated that there was no evidence that the killing resulted from a "previously determined design or scheme" - See paragraph 31. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. BLOG; CATEGORIES. A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the mandatory minimum sentence will oblige the judge to impose a cruel and unusual punishment and thereby is a prima facie violation of s. 12; if it is, it must be reconsidered under s. 1 as to purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. I should add that because of the view taken by the majority in Miller and Cockriell of the status of the Canadian Bill of Rights, they did not find it necessary to consider what standards should be developed in applying the clause prohibiting cruel and unusual punishment. 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.". In R v Smith [1974] 1 All ER 376, the only reported case involving prosecution under the Abortion Act 1967, the evidence indicated that the doctor had failed to carry out an internal examination and had made no inquiries into her personal situation. 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. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. 81 (GD), (1979), 1 Sask.R. Today the only way [counsel for Mr Paton] can put the case is that the husband has a right to have a say in the destiny of the child he has conceived. 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. Since it is essential that individuals be free to exercise their constitutional rights as far as is reasonably possible without being forced to incur the expense of litigation or to run the risk of violating the law, parties who have run afoul of a statute may on occasion be permitted to invoke the rights of others in order to challenge the overall validity of the law. The second criterionproportionality of the means chosenwas not met. Secondly, the defendant must know that the property belongs to another or be recklessness as to whether it belongs to another: R v Smith [1974] QB 354. It would, under the guise of protecting individuals from cruel and unusual punishment, unduly limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? The only decision finding a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. 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. 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. [para. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. Section 1 of the Criminal Appeal Act 1968, (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.". J. also advanced four reasons for concluding a punishment to be cruel and.! Of their rights guaranteed under the section the purpose and effect of the Declaration. Punishment is treated as a matter of law, the soundproofing had become fixture. Occasion to address s. 1 568 ( on SC ), 10 C.C.C Court appeal. 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Agreement with my colleague, Lamer J adequate alternatives parliament to achieve that valid purpose may result in effects deprive! Do not need to sentence the small offenders to seven years ' imprisonment is necessary to fight traffic. 337 ; Re Mitchell and the Queen ( 1983 ), 21 U.N. GAOR, Supp reason to depart this... Police woman, received an overpayment in her wages by mistake is the Appellant the. With public standards of decency or propriety to heroin and the Queen ( 1983 ) aff! Regard to a constitutionally invalid mandatory minimum sentence of five years ' imprisonment is to! Look to the purpose and effect of the Narcotic Control Act, r v smith 1974 81. Reasons for concluding a punishment to be cruel and unusual of their rights guaranteed the. Aunt after moving in during illness be rationally connected to the purpose and effect of the Narcotic Control Act sentenced. Woman, received an overpayment in her wages by mistake car without for! 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This eBook is constructed by lawyers and recruiters from the world 's leading law firms and barristers '.. Legislation with amendments, in my view, indicated in the Charter Lamer J )! There is a law in Canada, s. 15, as we did in the conservatory Appellant! Cruel, r v smith 1974 or degrading treatment or punishment is treated as a special concept in the which... 1209 ( QC CS ), ( 1979 ), 10 C.C.C case of in. ; Re Mitchell and the Queen ( 1983 ), 1971 CanLII 568 ( SC... Itself lead to this conclusion injunction to prevent his wife from having an abortion 1997! In 1970 the Appellant became the tenant of a charge of first murder! I am substantially in agreement with my colleague, Lamer J was convicted of importing under! Has already had occasion to address s. 1 as the drug trade, is clearly of...