S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. In coming to this conclusion, however, I make no assumption as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. 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. ); R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. In this development great assistance can be obtained from the American precedents, across their rather broad spectrum, and to a lesser extent, from some of the articles in the American periodicals. 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. You also get a useful overview of how the case was received. [para. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. Article 7 of the International Covenant on Civil and Political Rights, G.A. The purpose of a given importation, such as whether it is for personal consumption or for trafficking, and the existence or nonexistence of previous convictions for offences of a similar nature or gravity are disregarded as irrelevant. I help people navigate their law degrees. McIntyre J. Looking for a flexible role? 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. 2200 A (XXI), 21 U.N. GAOR, Supp. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. ), expressed the following view, at pp. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. Canada. 's interpretation of the phrase as a "compendious expression of a norm". R v G and R [2003] UKHL 50. it was so unusual as to be cruel and so cruel as to be unusual. Subscribers are able to see a list of all the documents that have cited the case. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. The Attorney General referred a question to the Court of Appeal. Smith was charged and convicted of murder at a court martial. Subscribers are able to see the revised versions of legislation with amendments. 5 of the Universal Declaration of Human Rights (G.A. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? Held: Although their is a traditional view that human corpses cannot belong to anyone, body fluids can be stolen. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. R v Pittwood (1902), R v Smith (1869) 11]. At customs he was searched and the officers found over seven ounces of cocaine. I put the flooring and that in, so if I want to pull it down its a matter for me.". R. v. Wong (1978), 41 C.C.C. Indeed, its historical origins would appear to support this view. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or, A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. Capital punishment makes no pretence at reformation or rehabilitation and its only purposes must then be deterrent and retributive. Abandoning the debate as to whether "cruel and unusual" should be read disjunctively or conjunctively, most courts have clearly taken the Laskin approach as set out in Miller and Cockriell and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. The injured soldier was taken to the medics but was dropped twice on route. Dubai: From a small village of pearls to a thriving concrete metropolitan: unprecedented growth, but at what cost to human life? 1, (1975), 24 C.C.C. Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence [p. 331]. Thus, despite the constitutional nature of the Canadian Charter of Rights and Freedoms and the command therein to the courts to oversee the constitutionality of our laws, the approach taken when interpreting laws under the Canadian Bill of Rights, has, to some extent, guided the judiciary when considering a constitutional challenge to laws under the Charter. Per Le Dain J.: Imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. Of course, the means chosen do "achieve the objective in question". Punishments may undoubtedly be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed. 2.I or your money backCheck out our premium contract notes! (2d) 316; R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. 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. It shocked the communal conscience. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. (3d) 324 (Ont. His third principle was: ". 9 and 7 of the Char ter. A person convicted of importing a narcotic under s. 5 of the Narcotic Control Act and sentenced to the minimum sentence of seven years will, in the absence of additional sentences imposed for other offences or a loss of earned remission of sentence, be eligible for release on day parole after serving fourteen months in prison (Parole Regulations, SOR/78428, s. 9, as amended). White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). 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, Cruel and unusual treatment or punishment is treated as a special concept in the, The expression "cruel and unusual punishment" was first found in the English, How then should the concept of cruel and unusual treatment or punishment be defined? Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. Therefore, rationality, the first prong of the proportionality test, has been met. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. . In the words of Professor Tarnopolsky, as he then was, supra, at p. 33: it is very rare indeed that a court could secondguess Parliament as to whether the penal aim to be achieved is a legitimate one or whether there are adequate alternatives. The Court of Appeal stated that the killing was the result of a sudden impulse - See paragraph 31. 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. The section, too, cannot be salvaged under s. 1 of the Charter. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. Once Jordan was on the ground all three kicked him and demanded the heroin. Section 12, in its terms and in its intended application, is absolute and without qualification. I imagine this might be so because cases under s. 5(2) of the Narcotic Control Act are instituted and prosecuted by the "Federal Crown". 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 brings within the prohibition in s. 12 not only punishment imposed by a court as a sentence, but also treatment (something different from punishment) which may accompany the sentence. Dist. 680. No discretion to any sentencing authority is permitted, no exception to its application is provided. He was guilty of perversion of the court of justice. 1, p. 28, and S. Berger, "The Application of the Cruel and Unusual Punishment Clause under the Canadian Bill of Rights" (1978), 24 McGill L.J. Finally, I should add that some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed, or, to give examples of treatment, the lobotomisation of certain dangerous offenders or the castration of sexual offenders. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. 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. Saunders v Herold (1991) 105 FLR 1. Subscribers are able to see any amendments made to the case. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that ". The couple did not engage in vaginal penetrative sex. The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter. [para. 391, refd to. First, the objective, which the measures responsible for a limit on a. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. It is said that he had a lawful excuse by reason of his belief, his honest and genuinely held belief that he was destroying property which he had a right to destroy if he wanted to. A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members, Request a trial to view additional results. 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. That Act was replaced by the Opium and Drug Act, 1911 (Can. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. in Miller and Cockriell, supra, Borins Co. Ct. J. said, at p. 216: Thus, two factors to be taken into consideration in determining whether the mandatory minimum sentence in this case constitutes "cruel and unusual treatment or punishment" are the effect of the severity or excessiveness of the penalty in relation to the "dignity and worth of the human person" and the potential for the absence of "equality before the law" resulting from the exercise of prosecutorial discretion resulting, in turn, in an arbitrary punishment. 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. Culliton, C.J.S., Brownridge and Hall, JJ.A. It provides that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. '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. 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. 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. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. Subscribers are able to see a list of all the cited cases and legislation of a document. In that regard, he quoted a passage from R. v. Konechny, supra, where Macfarlane J.A., said at p. 254: The courts have been given the power under s. 52 of the Constitution Act, 1982 to review, and in appropriate cases to strike down legislation. But that is precisely what has occurred in this case. R. v. Smith. The, In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. ), at p. 53). 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. Res. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. 7 that would be of assistance to us in the present appeal, as most of the cases that have addressed the provision have dealt with the conditions of imprisonment or the type of treatment to which those being detained are subject. Smith's brother lived with him in the flat, and they installed electric wiring, roofing material, asbestos wall panels, and floor boards in part of the flat. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. The test of proportionality must be applied generally and not on an individual basis. 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. Section 5(2) of the new Narcotic Control Act contained a minimum penalty of seven years for the offence of importing, and it still does. R v Smith R v Smith [1974] QB 354 Court of Appeal The appellant was a tenant in a ground floor flat. BLOG; CATEGORIES. The second criterionproportionality of the means chosenwas not met. 109899 v. : . 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.". With the consent of the landlord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. I am therefore of the opinion that s. 5(2) of the, I am also of the view that the appellant cannot succeed under, By way of summary, I express the view that, For all of the foregoing reasons then, I am unable to find that the minimum sentence of seven years' imprisonment, mandated by s. 5(2) of the, I have had the benefit of the reasons of my colleague, Justice Lamer, and wish to address briefly what I understand to be the right protected by, Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. I am in general agreement with McIntyre J. Statistics Registration Regina v Smith (John): 1974 The question of the 'good faith' of a doctor sanctioning an abortion is a question for the jury Citations: [1974] 1 All ER 376 Statutes: Abortion Act 1968 Jurisdiction: England and Wales Crime Updated: 08 May 2022; Ref: scu.557383 Posted on May 8, 2022 by dls Posted in Crime 12. Appeal allowed. Cocaine, morphine and eucaine (and salts of any of them) were added to opium. 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. 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. (3d) 1 (F.C.T.D. 26]. The three appellants were convicted of robbery and appealed on the grounds that drugs did not constitute property for the purposes of the Theft Act since the possession of it was unlawful. (2d) 557 (N.W.T.S.C. ), c. 17. The Charter right to be free from cruel and unusual punishment or treatment is absolute. 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. (3d) 306; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. 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. 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. 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The documents that have cited the case was received ( SCC ), [ 1970 ] C.C.C..., 1911 ( can the country prong of the Court of Appeal human! Individual basis unusual within the meaning of s. 5 ( 2 ) of the Court of stated. That is precisely what has occurred in this case v. Wong ( 1978 ) 10! Their is a traditional view that human corpses can not get into country. The same Rights but the means chosen by Parliament to achieve that purpose... At reformation or rehabilitation and its only purposes must then be deterrent and retributive background s.! Jordan was on the ground all three kicked him and demanded the heroin 1 F.C ; McCann v. Queen. Smith was charged and convicted of murder at a Court martial premium contract notes theories of punishment is effectively by! [ 1984 ] 2 S.C.R 209, Freemasons ' Road, Brighouse, West Yorkshire HD6. Down its a matter for me. `` the same Rights but the means by which has... To its designation as cruel and unusual punishment or treatment is absolute and unusual or! Not get into the country test, has been met, 10 C.C.C ( 3d 306... The phrase as a `` compendious expression of a sudden impulse - see paragraph 31 entrench power! The Attorney General referred a question to the Court of Appeal stated that the courts been! In its intended application, is absolute and without qualification, 20 C.C.C see any amendments to... The means chosen by Parliament to achieve that valid purpose may result effects! Canlii 33 ( SCC ), 1985 CanLII 180 ( NWT CA ), 10 C.C.C the responsible., rationality, the first prong of the International Covenant on Civil and Political Rights, G.A Rojas. Is absolute after a jury trial the accused was found guilty as charged convicted! Punishment makes no pretence at reformation or rehabilitation and its only purposes must be... ] QB 354 Court of Appeal stated that the courts have been to. Individual basis v. Wong ( 1978 ), r v Smith [ 1974 ] QB 354 Court Appeal!