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. 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. 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. See details Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. 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. In Phillips v. Irons 354 Ill. App. (3d) 336 (Ont. (2d) 23 (Ont. Ct. 1st Dist. However, as I said, a sentence is or is not grossly disproportionate to the purpose sought or a punishment is or is not cruel and unusual irrespective of why the violation has taken place. This is understandable as at the time this Court had not yet handed down its, , wherein the relationship between s. 7 and ss. & M. sess. 384, 13 C.C.C. However, the potential that such a person be charged with importing is there lurking. . (3d) 42 (Ont. Summary: This case arose out of a charge of first degree murder. He summarized his reasons at p. 425 of his judgment: In short, the effect of s. 5(2) is that guilt or innocence on a charge of importing or exporting a narcotic is determined judicially by a judge or jury, but the sentence is not determined by a judge or a jury, but is predetermined by Parliament. The belief grew that resort would no longer be had to the savage punishments of more primitive times. MR. J. RYLANCE appeared on behalf of the Appellant. An example of the Parliamentary approach may be found in the steps taken in enacting s. 5(2) of the Narcotic Control Act, as detailed in the judgment of Arnup J.A. (2d) 23) reversed the decision of Borins Co. Ct. J. and held that s. 5(2) did not impose a punishment that was so disproportionate to the offence as to be cruel and unusual. (2)Every person who violates subsection (1) is guilty of an indictable offence and is liable to imprisonment for life but not less than seven years. While not a precise formula for cruel and unusual treatment or punishment, this definition does capture the purpose and intent of s. 12 of the Charter and is consistent with the views expressed in Canadian jurisprudence on this subject. in R. v. Shand, supra. We wish to draw attention, as we did in the immediately preceding case of. The term ethics is derived from the Greek word ethos which means character. Smiths defence was that he had an honest belief the property was his. At most, the divergence in penalties is an indication that the greater penalty may be excessive, but it will remain necessary to assess the penalty in accordance with the factors discussed above. [para. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. There are conditions associated with the service of sentences of imprisonment which may become subject to scrutiny, under the provisions of s. 12 of the Charter, not only on the basis of disproportionality or excess but also concerning the nature or quality of the treatment. The chilling effect will be present in respect of any law or practice which has the effect of seriously discouraging the exercise of a constitutional right: see North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. It was "unusual" because of its extreme nature. 570, 29 C.C.C. After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). R v Smith [1959] 2 QB 35 CAUSATION Facts The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. (No. In such a case it would then be incumbent upon the authorities to demonstrate under s. 1 that the importance of that valid purpose is such that, irrespective of the effect of the legislation, it is a reasonable limit in a free and democratic society. (2d) 199 (Ont. (3d) 233; Re B.C. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. 81 (GD), (1979), 1 Sask.R. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English Bill of Rights of 1688, 1 Wm. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. (The respective dates of the two Acts are immaterial, in view of s. 5(2) of the Bill of Rights.) It is the judge's sentence, but not the section, that is in violation of the, In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the. J. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 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. 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. 69697 that he could not find "that there was no social purpose served by the mandatory death penalty so as to make it offensive to" the cruel and unusual punishment clause of the, The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? The mandatory imposition of the minimum sevenyear sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". Furthermore, as there is no parallel to ss. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. 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. The Charter right to be free from cruel and unusual punishment or treatment is absolute. 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. The ruling itself is not the cause for discussion as the decision is not binding in the English courts however the actions which lead to the case being heard by the courts are the cause for discussion. 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. 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. (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. One must also measure the effect of the sentence actually imposed. 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. Suffering behind female sex workers: Why we should oppose legalisation of prostitution. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. In 1955 the drug problem in Canada was studied by a Special Committee of the Senate which reported on June 23, 1955. 5. They failed to diagnose that his lung had been punctured. R. v. Mitchell, 43 C.R. R v. Smith (1974) 58 Cr. 471; R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. It thus is not necessary to delimit the scope of the terms "treatment" and "punishment", since they clearly include the imposition by a judge of a term of imprisonment. In that case, the validity of the very section under review in the case at bar was tested under the Canadian Bill of Rights' prohibition in s. 2(b) against cruel and unusual treatment or punishment. Seller pays for return shipping. Applied: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. Res. (3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. As stated by the majority of this Court in Re B.C. Because this is not a sentence appeal and because there was no suggestion that the sentence of eight years imposed on the appellant was cruel and unusual, I would normally dismiss this appeal. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. I put the flooring and that in, so if I want to pull it down its a matter for me.". It is true that the enactments of Parliament must now be measured against the, In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? 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. 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. (2d) 158; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. 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. ), at pp. (3) Is it unacceptable to a large segment of the population? 217 A (III), U.N. Doc A/810, at 71 (1948), art. was followed by Borins Co. Ct. J. of, . ), refd to. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. He appeals against that conviction upon a question of law. When the Abortion Act 1967 finally came into force, it was perhaps one of the most progressive pieces of legislation introduced by any Government however the law in this area appears to have stood still since it was introduced. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. R. 106, in which a doctor was convicted for lack of good faith in authorising an abortion under s. 1 (1) (a) of the Act. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. '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. 1952, c. 201, s. 4. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. The minimum must, subject to s. 1, be declared of no force or effect. 156 (B.C.S.C.). (2d) 564; McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 23]. The courts, the, In neither case, be it before or after the. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. 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. 214(2) [para. 's statement of the test for cruel and unusual punishment under s. 12 of the Charter, including his approach to the application of disproportionality and arbitrariness. 2023 vLex Justis Limited All rights reserved, VLEX uses login cookies to provide you with a better browsing experience. 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). In the situation I have described of the cigarette of marihuana, it varies only notionally from the possessor of the same narcotic within the country. This involves "a form of proportionality test": This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. On the contrary, I believe it is quite fundamental. Facts: The defendant, an assistant at an electrical shop, was asked by an acquaintance to supply goods (16,000) in exchange for two building society cheques that the defendant knew were stolen. Provided that two medical practitioners who have, in good faith, decided that the womans circumstances fit within the statutory grounds the decision is final. Is it in accord with public standards of decency or propriety? ) (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? A definition which satisfies this requirement and fits modern conditions is again supplied by Laskin C.J. Saunders v Herold (1991) 105 FLR 1. 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 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. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. In 1920 came the Opium and Narcotic Drug Act, c. 31; a series of amendments preceded a new consolidated Act (1923, c. 22) which remained substantially unaltered until 1954. Once there the treatment given was described as palpably wrong. 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. Than in 1972 the Appellant gave notice to quit and asked the landlord to allow the Appellant's brother to remain as tenant of the flat. 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. I have considered whether that should not be sufficient to sustain the validity, on its face, of the mandatory minimum sentence of seven years' imprisonment, subject to the power of a court in a particular case to find that the mandatory minimum sentence is constitutionally inapplicable because it would in all the circumstances of the case be cruel and unusual punishment. Now to deal with the appellant. 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. 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. (3d) 277; R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. 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. 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. For four months the post was not filled. Some punishments may be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also being cruel and unusual. [para. 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. We do not need 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". Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. 680. More recently, the Court of Criminal Appeal in England has made the comment: 'There has never been a complete and satisfactory definition of manslaughter.'. This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? 486, wherein the relationship between s. 7 and ss. 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. Dickson J., as he then was. 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. o R v Instan 1893- niece failed to care for aunt after moving in during illness. (3d) 353 (Ont. C $1.99. 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. The concept of "the fit sentence" to which I made reference in my concurring reasons in Re B.C. Q.B. However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. Penitentiary Act, R.S.C. 63-5, September 2000. 2.I or your money backCheck out our premium contract notes! The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. The prosecutorial discretion is then exercised in selecting the appropriate charges. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. R v Smith (1974) - the appellant was a tenant in a ground floor flat. 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. The basis for such policy may be reviewed if the policy is said to conflict with individual rights under the Charter, but, in my opinion, the policy ought not to be struck down, in the case of a challenge under s. 9, unless it is without any rational basis. (3d) 336; Coker v. Georgia, 433 U.S. 584 (1977); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (1978); Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 433 U.S. 584 (1977); R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. The written stories, however, depicted explicit sex and violence. (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. Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. Parliament has determined that a minimum sentence of seven years' imprisonment is necessary to fight the traffic in narcotics. (2d) 343 (Que. : it must "outrage standards of decency". Clearly, the minimum penalty for importing, enacted after recommendations to that end, was the result of deliberate legislative policy, with specific evils and specific remedies in mind. This deference to Parliament has been repeated in many cases (R. v. Simon (No. By installing these items, in law, they became the property of the landlord, as they formed part of the flat. (1978), 10. ) 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. ); R. v. Morrison, Ont. The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. (1978), 10 Ottawa L. Rev. C.A. [para. The minimum will surely deter people from importing narcotics. However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. 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. In the present case Craig J.A. He left on 20 October 1975. 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.