Held: He was liable for theft of his own car since the car was regarded as belonging to the service station as they were in possession and control of it. In our view a minimum sentence of seven years for importing a drug contrary to the Act is not so disproportionate to the offence that the prescribed penalty is cruel and unusual. 1970, c. N1, ss. In setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offence, the protection of the public, and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the particular accused should be given relatively less weight. Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. 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 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) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. A convicted person has a right of appeal upon questions of law alone. [para. It shocked the communal conscience. For example, Lacourcire J.A., in R. v. Langevin, supra, stated, at p. 360: In the cases considered under s. 2(b) of the Bill of Rights such as Hatchwell v. The Queen (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. 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. Clearly there is no need to be indiscriminate. 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. ); 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. This Court's decision in Miller and Cockriell, supra, is the last important decision that addressed s. 2(b) of the Canadian Bill of Rights. [para. Learn faster with spaced repetition. An honest but mistaken belief could be used as a lawful defence to such a charge under the circumstances. 10]. The certainty that all those who contravene the prohibition against importing will be sentenced to at least seven years in prison will surely deter people from importing narcotics. Furthermore, recourse to American jurisprudence on the Eighth Amendment as an aid to interpreting s. 2(b) of the Canadian Bill of Rights was considered inappropriate as the documents involved were quite different. R v Pittwood (1902), R v Smith (1869) The following are the reasons delivered by. 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. 23]. 8. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. Everyone has the right not to be arbitrarily detained or imprisoned. It is the judge's sentence, but not the section, that is in violation of the Charter. The test for review under s. 12 of the Charter is one of gross disproportionality because s. 12 is aimed at punishments more than merely excessive. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. H.C.)), In the early years of the Canadian Bill of Rights, in those rare cases where s. 2(b) was the object of some judicial analysis, the application of the prohibition was either limited to the protection against the infliction of excessive and unusual physical pain (R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. 's concept of "interacting expressions colouring each other" (see Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Subscribers are able to see a visualisation of a case and its relationships to other cases. European Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights. While the trial judge found that the minimum sentence of seven years, prescribed by s. 5(2) of the Narcotic Control Act, violated s. 12 of the Charter, he nevertheless imposed a sentence of eight years' imprisonment on the appellant. 1970, c. N1, that gives no judge in the land any other choice. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. Her duties were not quite the same as those of Mr McCullough. 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. It recommended substantially more severe penalties for trafficking, with a "compulsory lengthy minimum sentence, increasing for second or subsequent offences". He will be eligible for a full parole after serving onethird of his sentence (28 months), and will be entitled to release on mandatory supervision after serving twothirds of his sentence (56 months), unless there are reasonable grounds for believing that he is likely to commit an offence causing the death of, or serious harm to, another person upon his release (Parole Regulations, SOR/78428, s. 5 as amended; Parole Act, R.S.C. (2d) 196 (B.C.C.A. Now to deal with the appellant. 47]. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. (3d) 363 (N.S.C.A. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, <, Carmona v. Ward, 576 F at (2d) 405 (not available on CanLII), People v. Broadie, 371 NYS (2d) 471 (not available on CanLII), Regina v. Smith, 35 CR (3d) 256, 11 CRR 283 (not available on CanLII), Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the. It must be remembered that s. 12 voices an absolute prohibition. 1, (1975), 24 C.C.C. 7. It urged upon us that the imposition of severe punishments on drug importers will discourage the perpetration of such a serious crime. 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. While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. 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. 63]. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. . C $1.99. It was irrelevant to consider whether such a belief was justifiable or not as if the individual believed the property was his own, he lacked mens rea at the time of the act. Gender-based violence in general. (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) The business collapsed before he paid the money to book the holidays and the clients lost their deposit. 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. 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. R v Smith (1974) - the appellant was a tenant in a ground floor flat. o R v Instan 1893- niece failed to care for aunt after moving in during illness. 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. 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. Though the passage from his judgment is lengthy, I reproduce it hereunder in full: "An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes", 1908 (Can. 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". In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? "Look, how can I be done for smashing my own property. Yet, there is a law in Canada, s. 5(2) of the. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. A sevenyear sentence for drug importation is not per se cruel and unusual. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here. The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. Criminal Code, R.S.C. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. (3d) 49; R. v. Simon (No. 253 and 255). Smith, R v [1979] (Crown Court) Speck, R v [1977] 2 ALL ER 859 (CA) Stone and Dobinson, R v (1977) 1 QB 354 (CA) Yuthiwattana, R v (1984) 16 HLR 49 (CA) Subscribe on YouTube. This Court has already had occasion to address s. 1. A punishment may be proportionate to the offence, in the sense that it does not outrage the public conscience or go beyond what is necessary for the achievement of a valid social aim, and yet still be cruel and unusual because it is imposed arbitrarily. 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. For reasons I will give later I will address only s. 12 of the Charter. Held: Hinks' conviction was upheld. This would not provide an acceptable basis for constitutional determination. Ottawa. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. Subsequently, the court heard Coker v. Georgia, 433 U.S. 584 (1977), which raised the question whether the death penalty for rape was cruel and unusual. 570, 29 C.C.C. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. (3d) 193 (Ont. . It is not the intention of this piece to address the correctness of the tabled amendment nor is it the intention of this piece to discuss the rights or wrongs of abortion. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment. The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. The Steven John Smith jointly charged is the Appellant's brother. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. 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. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. Many of these principles have already found their way into Canadian jurisprudence, particularly the early decisions interpreting the cruel and unusual punishment clause of the Canadian Bill of Rights. However, the potential that such a person be charged with importing is there lurking. Dubai: From a small village of pearls to a thriving concrete metropolitan: unprecedented growth, but at what cost to human life? That case and others may have to be given limited interpretation in due course if it is concluded that the, 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, Smith's appeal was dismissed by the Court of Appeal for British Columbia (, , also a decision of the British Columbia Court of Appeal. A guilty verdict under s. 5(1), however, will inevitably lead to the imposing of a totally disproportionate term of imprisonment for s. 5(1) covers many substances of varying degrees of danger, totally disregards the quantity imported and treats as irrelevant the reason for importing and the existence of any previous convictions. Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Simple and digestible information on studying law effectively. ), refd to. It is clear however that at this moment in time the only parties who have any say in whether a termination should or should not be carried out are the two medical practitioners. Facts: Hinks, a young mother, befriended a 53 year old man called John Dolphin. (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. 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