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. Reasons The defense claimed that in order to convict for murder it would have to be proven that it was Smith's actions that caused the death. The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. 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. Take a look at some weird laws from around the world! Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 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. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 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. It is apparent, and here no evidence is needed for we "should not be ignorant as judges of what we know as men" (Frankfurter J. in Watts v. Indiana, 338 U.S. 49 (1949), at p. 52), that the minimum sentence provided in s. 5(2) of the Narcotic Control Act has not reduced the illicit importation of narcotics to the extent desired by Parliament and probably no punishment, however severe, would entirely stem the flow into this country. There are at least three ways in which the imposition of a punishment may be said to be arbitrary: the legislative decision to enact the law which provides for punishment could be arbitrary; the legislation on its face could impose punishment in an arbitrary manner; and finally, a body empowered to impose punishment could, in practice, impose the punishment arbitrarily. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. Belonging to Another . The assessment of alternative punishments cannot, of course, be carried out with precision, since our knowledge of the efficacy of any punishment is at best rudimentary. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. Criminal Law. A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics: (1)The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2)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. Parole Act, R.S.C. That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. Where do we Look for Guidance?" 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. La Forest J.I am substantially in agreement with my colleague, Lamer J. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. 152, 68 C.C.C. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. The approach has been frequently adopted in other cases and, in my view, provides a sound approach to the interpretation of the words in question (see R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. 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. 7, 9 and 12 of the Charter. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual. 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. ), refd to. 2, c. 2, s. 10. The jury were entitled to find that force had been used. , R.S.C. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? ) Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the property is contrary to common-sense and to the natural meaning of the words. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. , for the intervener the Attorney General for Ontario. Dickson J., as he then was. It is the judge's sentence, but not the section, that is in violation of the Charter. In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. found that the section was not inconsistent with the Charter and, of the opinion that the eightyear sentence imposed by Wetmore Co. Ct. J. was appropriate, he dismissed the appeal from sentence. Thus, the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate. Held: At first instance the defendant was convicted of theft. 145; R. v. Big M Drug Mart Ltd., supra; Re B.C. 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. It has been aptly observed that 'Of all crimes manslaughter appears to afford most difficulties of definition'. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. The approach undertaken by McIntyre J.A. 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. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. C.A. (2d) 438; Pearson v. Lecorre, Supreme Court of Canada, October 3, 1973, unreported; R. v. Hatchwell, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 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. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. Yet, as Lamer J. points out, s. 5(2) of the Narcotic Control Act precludes the imposition of a sentence less than seven years for the importation of even a minimal quantity of marihuana, a solitary cigarette. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. A claim which was eventually rejected. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 680; Re B.C. Subscribers can access the reported version of this case. That excessive Bail ought not to be required, nor excessive Fines imposed; 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. 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. However, the sevenyear minimum prison term of s. 5(2) is grossly disproportionate when examined in light of the wide net cast by s. 5(1). . The section, too, cannot be salvaged under s. 1 of the Charter. 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. I disagree, however, with Lamer J. that the arbitrary nature of the minimum sentence under s. 5(2) of the Act is irrelevant to its designation as "cruel and unusual" under s. 12. Having made this determination, he then held a presentence hearing and imposed a sentence of eight years in the penitentiary. In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). 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. 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. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. I turn then to the second test which, of course, overlaps the first in some respects. Case Summary 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. J. 680. 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. In this judgment, Heald J., of the Trial Division of the Federal Court, declared that the prison conditions to which certain prisoners were subjected in the solitary confinement unit of the British Columbia Penitentiary amounted to cruel and unusual treatment or punishment. R. v. Mitchell, 43 C.R. I am in general agreement with McIntyre J. Culliton, C.J.S., Brownridge and Hall, JJ.A. (2) Is it unnecessary because there are adequate alternatives? 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. (2d) 337; Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 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. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the, whether the punishment prescribed is so excessive as to outrage standards of decency. 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 s. 12 of the Charter, and hence beyond the power of Parliament. I am in general agreement with McIntyre J. Motor Vehicle Act, supra; and R. v. Oakes, supra, this Court indicated that once there has been a prima facie violation of the Charter the burden rests upon the authorities to salvage the legislative provision in question. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. Section 12 might also be invoked to challenge other kinds of treatment, such as the frequency and conditions of searches within prisons, dietary restrictions as a disciplinary measure, corporal punishment, surgical intervention including lobotomies and castration, denial of contact with those outside the prison, and imprisonment at locations far distant from home, family and friends, a condition amounting to virtual exile which is particularly relevant to women since there is only one federal penitentiary for women in Canada. The courts, the Charter so commands, must examine challenged legislation in order to determine whether it infringes a right protected by the Charter. Everyone has the right not to be arbitrarily detained or imprisoned. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. The husband has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion. 1, (1975), 24 C.C.C. 9 and 7 of the Char ter. 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. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. 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. 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. ), at pp. 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. 108; 102 A.R. 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. An overview of the cases since decided under, and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (, Relying on the guidelines enunciated under the, This deference to Parliament has been repeated in many, 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. The extent of the damage was 130. Clearly there is no need to be indiscriminate. The new, 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? This is what offends s. 12, the certainty, not just the potential. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. At pages 69394 of his judgment, he states: 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. The role of Parliament in the determination and definition of this aspect of public policy would be eliminated. It recommended substantially more severe penalties for trafficking, with a "compulsory lengthy minimum sentence, increasing for second or subsequent offences". The purported certificate in the present case is a nullity being granted in excess of jurisdiction. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. 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. Ct., Borins Dist. Further, there will be a range of sentences which may be considered excessive, but not so excessive or so disproportionate as to "outrage standards of decency" and thereby justify judicial interference under s. 12 of the Charter. Without addressing the question whether the Canadian Bill of Rights created new rights, Beetz J. concurred in RitchieJ. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. Oxford v Moss (1979) 68 Cr App R 183. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment. 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. Arnup J.A. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. The soldier died. In-house law team, Damage to property mistake Criminal Damage Act 1971. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. 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. Adopting Laskin C.J. In conclusion, I agree with Lamer J. that 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. ), refd to. D believed the fixtures belonged to him. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. More v. The Queen, [1963] S.C.R. 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