Subscribers are able to see a visualisation of a case and its relationships to other cases. R. v. Smith (1980), 1 Sask.R. 2, c. 2, which states: 10. 61]. 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. 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). 1970, c. C34, ss. Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. 295, this Court expressly held that a corporation charged with a criminal offence under the Lord's Day Act could argue that the Act violated freedom of religion, under s. 2(a) of the Charter, without also alleging that the statute specifically infringed its religious beliefs. 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). However, the potential that such a person be charged with importing is there lurking. it was so unusual as to be cruel and so cruel as to be unusual. relied on R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Jordan handed over the heroin and they ran off. 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. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 109899 v. : . 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. Held: At first instance the defendant was convicted of theft. At pages 69394 of his judgment, he states: Justice Brennan propounded a cumulative test, which represented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. Solicitor for the intervener: Attorney General for Ontario, Toronto. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? 1970, c. C-34 - See paragraphs 23 to 27. Therefore, in seeking guidance for the meaning to be given to the phrase, we can only refer to those criteria elaborated upon by a minority of judges under the Canadian Bill of Rights. Sections 9 and 12 are not mutually exclusive. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. 7, 9 and 12 of the Charter. The minimum will surely deter people from importing narcotics. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. Areas from which duties can arise from Duties arising through contractual obligations. 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 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. (1978), 10, APPEAL from a judgment of the British Columbia Court of Appeal, , dismissing an appeal from sentence imposed by Wetmore Co. Ct. J. and overturning his ruling finding s. 5(2) of the. . - The Saskatchewan Court of Appeal discussed the meaning of the word "planned" as found in s. 214(2) of the Criminal Code of Canada, R.S.C. (1978), 10. ) In addition to the protection afforded by, 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. Res. Furthermore, even assuming some deterrent value, I am of the opinion it would be cruel and unusual if it is not in accord with public standards of decency and propriety, if it is unnecessary because of the existence of adequate alternatives, if it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards, and if it is excessive and out of proportion to the crimes it seeks to restrain. A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. 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. This minimum sentence continued through R.S.C. The purpose of the importing, namely whether it is for trafficking or for personal consumption, and the quantity imported are irrelevant to guilt under s. 5. Subscribers are able to see a list of all the documents that have cited the case. (3d) 306 (Ont. However, I am not aware of any international jurisprudence on the interpretation of art. We wish to draw attention, as we did in the immediately preceding case of. As regards this subject the comments by Borins Dist. 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. Ct.), and Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. 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. See Lord Justice Scarman's judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. 2, 4, 5(1), (2). ), pp. (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) 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). Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. Therefore, to conclude, I find that the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act infringes the rights guaranteed by s. 12 and, as such, is a prima facie violation of the Charter. 1 (B.C.C.A. Wikibrief. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", That is because there are social and moral considerations that enter into the scope and application of s. 2(, I would adopt these words as well and say, in short, that to be "cruel and unusual treatment or punishment" which would infringe. (2d) 557; R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. 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. (Proportionality is to be determined on a general rather than an individual basis.) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; )The punishment goes 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; or. ) 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. 9 and 7 of the Charter. (2d) 556 (B.C.C.A. The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter. 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. in Miller and Cockriell, supra. (2d) 158; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. (3d) 42 (Ont. 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. 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. 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. 186, refd to. Constitutional effect to the prohibition in s. 12 cannot be given if its application is to vary from case to case and person to person. The addition of treatment to the prohibition has, in my view, a significant effect. The minimum must, subject to s. 1, be declared of no force or effect. In this, he found support from Douglas J. and Stewart J. I also agree with him that a punishment which is found to be cruel and unusual could not be justified under s. 1 of the Charter. Of course, Lambert J.A. 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. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. and concluded that the section did not impose cruel and unusual punishment. & M. sess. There are, in my view, three important components of a proportionality test. 1074; 101 N.R. 2005) the Appellate Court of Illinois ruled that a Chicago Doctor could sue his girlfriend, also a Doctor, for emotional distress after his girlfriend saved sperm from oral sex and arranged to be impregnated with it. 's interpretation of the phrase as a "compendious expression of a norm". ), refd to. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. Criminal Code of Canada, R.S.C. This is understandable as at the time this Court had not yet handed down its decision in Re B.C. This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. The dissenting judge would have imposed a sentence of five years. Experience in other countries regarding the Covenant and the Optional Protocol, to which Canada acceded in 1976, may on occasion be of assistance in attempting to give meaning to relevant provisions of the Charter. 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. . As regards this factor, some comments should be made, because arbitrariness of detention and imprisonment is addressed by s. 9, and, to the extent that the arbitrariness, given the proper context, could be in breach of a principle of fundamental justice, it could trigger a prima facie violation under s. 7. 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. [para. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. It also extends to punishments which are, to use his words, "grossly disproportionate". 486, wherein the relationship between s. 7 and ss. Now to deal with the appellant. R v Pittwood (1902), R v Smith (1869) With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. 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. 60]. The legislation does not restrain the discretion of the trial judge to weigh and consider the circumstances of the offence in determining the length of sentence and it cannot be considered arbitrary and therefore cruel and unusual. As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under s. 12 of the Charter, does not appear to arise on the facts of the case. As a result, judicial interpretation of the Eighth Amendment has had to be more expansive than would be necessary under s. 12 of the Charter. It is because of that certainty that I find that the minimum mandatory imprisonment found in s. 5(2) is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees to each and every one of us that we shall not be subjected to any cruel and unusual treatment or punishment. 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" (, At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the, As indicated above, the offence of importing enacted by s. 5(1) of the, This is what offends s. 12, the certainty, not just the potential. Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. 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. 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". The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. 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. 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. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. 171 (Man. If that prohibition is not confined within definite limits, if it may be invoked by the courts on an individual casebycase basis according to judicial discretion, then what is cruel and unusual in respect of "A", on one occasion, may become acceptable in respect of "B" on another occasion. 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. One went upstairs and took some jewellery from her bedroom. R. v. Wong (1978), 41 C.C.C. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. . 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. A convicted person has a right of appeal upon questions of law alone. (2d) 316; R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. Article 7 of the International Covenant on Civil and Political Rights, G.A. The courts, the, In neither case, be it before or after the. 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. 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. 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. 680. 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. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. (3d) 336; R. v. Morrison, Ont. ); R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. 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. Canadian Government Publishing Centre, 1987. On this basis, I would adopt Laskin C.J. -they believed they had consent from a person they wrongly . As regards this factor, some comments should be made, because arbitrariness of detention and imprisonment is addressed by s. 9, and, to the extent that the arbitrariness, given the proper context, could be in breach of a principle of fundamental justice, it could trigger a, This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. The principles developed in the United States under the Eighth Amendment, while of course not binding on this Court, are helpful in understanding and applying the prohibition against cruel and unusual punishment contained in s. 12 of the Charter. (2) Is it unnecessary because there are adequate alternatives? 713). 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. Facts: The defendant took his car in to a service station for repairs. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. 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. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". 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. Where do we Look for Guidance?" 8 to 14 was commented on and where the "principles of fundamental justice" were defined as providing more than just procedural protection under the section. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. Firstly, the defendant must intend to destroy or damage property or be subjectively reckless as to whether the property would be damaged or destroyed: Criminal Damage Act 1971, s 1 (1). The test for review under, The numerous criteria proposed pursuant to s. 2(, 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 (, On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. 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