Since they limited their comments to delineating Parliament's purpose, acknowledging it to be valid and then refusing to interfere, little was said by them as regards the meaning of cruel and unusual treatment or punishment. And by that I mean that they are cruel and unusual in their disproportionality in that no one, not the offender and not the public, could possibly have thought that that particular accused's offence would attract such a penalty. (3d) 193 (Ont. 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. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. 152, refd to. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. That Act was replaced by the Opium and Drug Act, 1911 (Can. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. Of course, the means chosen do "achieve the objective in question". [para. There can be no doubt that Parliament, in enacting the, The formation of public policy is a function of Parliament. Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. wrote the judgment of the court (Brooke, Arnup, Dubin, Martin and Blair JJ.A.) The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. Research Methods, Success Secrets, Tips, Tricks, and more! ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. In view of the seriousness of the offence of importing narcotics, the legislative provision of a prison sentence cannot by itself be attacked as going beyond what is necessary to achieve the valid social aim. 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 "these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. The term ethics is derived from the Greek word ethos which means character. The Court of Appeal quashed his conviction for theft: the defendant had only intended to steal something worth stealing, and conditional intent is insufficient for theft. There is no problem of definition nor of recognition of cruel and unusual treatment or punishment at the extreme limit of the application, but of course the day has passed when the barbarous punishments of earlier days were a threat to those convicted of crime. APPEAL from a judgment of the British Columbia Court of Appeal (1984), 1984 CanLII 663 (BC CA), 11 C.C.C. While the Lord's Day Act was attacked primarily because it was enacted for a religious purpose, individuals may also challenge enactments on the ground that their effect is to infringe the religious rights of third parties (see R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. I would answer the constitutional question and dispose of the appeal as proposed by him. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. There are, in my view, three important components of a proportionality test. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. 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 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". Suffering behind female sex workers: Why we should oppose legalisation of prostitution. 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. C.A. Various tests have been suggested in the cases referred to and in the academic commentaries on this subject but not all will be relevant in every case. 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. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. However, the potential that such a person be charged with importing is there lurking. R. v. Nygaard and Schimmens, [1989] 2 S.C.R. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. 1019 (1893), at p. 1021). R. v. Reynolds (1978), 44 C.C.C. The Attorney General referred a question to the Court of Appeal. 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. Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. 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. 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. Held: The appeal was dismissed and the convictions were upheld. 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. The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. , this Court expressly held that a corporation charged with a criminal offence under the, ). 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. 213 ; (1961), 6 Crim. Further, after considering the justifications of deterrence and retribution, he concluded at pp. Everyone has the right not to be arbitrarily detained or imprisoned. See F Stark, 'Judicial Development of the Criminal Law by the Supreme Court' (2020) 0 OJLS 1; Zach Leggett, "The New Test for Dishonesty in Criminal Law-Lessons from the Courts of Equity" (2020) 84(1) The J Crim L 37; Karl Laird, 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. [para. Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434: I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness. [Emphasis added.]. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s. 12 of the Charter. 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. (2d) 196 (B.C.C.A. Where Do We Look for Guidance?" McMartin v. The Queen, [1964] S.C.R. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. Report of the Canadian Sentencing Commission. R v Smith [1959] 2 QB 35 The defendant, a soldier, got in a fight at an army barracks and stabbed another soldier. , for the intervener the Attorney General for Ontario. Smith was charged and convicted of murder at a court martial. (3d) 306 (Ont. 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. We in Canada also have other sections in the Charter to protect the equality of all in face of the law, amongst others, s. 15(1). Appeal allowed, McIntyre J. dissenting. Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. The prosecutorial discretion is then exercised in selecting the appropriate charges. This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Solicitors for the appellant: Serka & Shelling, Vancouver. Canadian Sentencing Commission. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. Co. Ct.)). In that case, all the judges of this Court agreed that capital punishment for murder did not constitute cruel and unusual punishment, but different routes were taken to reach this conclusion. Per Dickson C.J. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. In short, they must be rationally connected to the objective. (3d) 1 (F.C.T.D. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. (No. (3d) 26, 2 C.R.R. In particular, it inserts into the system a reluctance to convict and thus results in acquittals for picayune reasons of accused who do not deserve a sevenyear sentence, and it gives the Crown an unfair advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or included offence. 219, 294, 303, 306, 325, 361. These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12. There is no dispute that the roofing, wall panels and floor boards became part of the house and, in law, the property of the landlord. 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. Culliton, C.J.S., Brownridge and Hall, JJ.A. H.C.)), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (R. v. Dick, Penner and Finnigan, supra, and R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. However, the potential that such a person be charged with importing is there lurking. The Charter limits this power: s. 7 provides that everyone has the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, s. 9 provides that everyone has the right not to be arbitrarily detained or imprisoned, and s. 12 guarantees the right not to be subjected to any cruel and unusual treatment or punishment. The following are the reasons delivered by. 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. L.R. Saunders v Herold (1991) 105 FLR 1. McIntyre J. Where do we Look for Guidance? Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. It was not until fifteen years after the enactment of the Canadian Bill of Rights that a more in depth analysis of the protection afforded by s. 2(b) was undertaken. Relying on the guidelines enunciated under the Canadian Bill of Rights, judges deciding cases under s. 12 of the Charter have been somewhat more willing, and understandably so, to put legislation to the test. 471; R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. 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. 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. R. v. Mitchell, 43 C.R. It is conceded that seven years' imprisonment would not be cruel and unusual punishment for many, if not most, conceivable cases of unauthorized importing or exporting of a narcotic. 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. In-house law team, Damage to property mistake Criminal Damage Act 1971. 384, 13 C.C.C. (The respective dates of the two Acts are immaterial, in view of s. 5(2) of the Bill of Rights.) 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. There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. A/6316 (1966) is also worthy of note. 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. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. 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. It was unexpected and unanticipated in its severity either by him or by them. This is understandable, as the decision of the Court of Appeal in this case was delivered long before this Court's decision in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. Subscribers can access the reported version of this case. 10. Advanced A.I. 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". H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. Their cultivation is also prohibited. Ct. 1st Dist. I am in general agreement with McIntyre J. 4; Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. Dickson J., as he then was. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. Ct. J. in R. v. Guiller, Ont. The new statute provided certain safeguards with respect to the imposition of the death penalty. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 3. International Covenant on Civil and Political Rights, G.A. By way of summary, I express the view that s.12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing nor with related social problems. 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. Its length alone or by its length alone or by its very nature the... Additional results, R. v. Turningrobe ( R.A. ), 10 C.C.C s. 5 ( 2 ) of the as. General for Ontario there are, in my view, three important components of a proportionality test of policy! Brownridge and Hall, JJ.A., R.S.C sentence be grossly disproportionate to the purpose of trafficking and. 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