(3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. A claim which was eventually rejected. (Proportionality is to be determined on a general rather than an individual basis.) Ball v McIntyre (1966) 9 FLR 237, 245. 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. It has introduced the safeguard of two opinions: but, if they are formed in good faith by the time when the operation is undertaken, the abortion is lawful. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. 354 (1974) Facts David Smith (defendant) rented a flat in 1970. 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. This would not provide an acceptable basis for constitutional determination. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. : it must "outrage standards of decency". 1. S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. . 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. 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. Narcotic Control Act, R.S.C. In short, they must be rationally connected to the objective. It is not necessary, for reasons discussed above, to answer the question as regards ss. There can be no doubt that Parliament, in enacting the, The formation of public policy is a function of Parliament. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. (2d) 438 (T.D. 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. Sentencing, at the best of times, is an imprecise and imperfect procedure and there will always be a substantial range of appropriate sentences. 1970, c. C34, and other penal statutes. 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. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. 2200 A (XXI), 21 U.N. GAOR, Supp. I turn then to the second test which, of course, overlaps the first in some respects. 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). It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". Particulars of Offence: David Raymond Smith and Steven John Smith on the 19th day of September 1972 in Greater London, without lawful excuse, damaged a conservatory at 209, Freemason's Road, E16, the property of Peter Frank Frand, intending to damage such property or being reckless as to whether such property would be damaged." It is not until the enactment of our own Canadian Bill of Rights, more particularly s. 2(b), that the courts addressed the meaning of those very words, cruel and unusual punishment. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. (3d) 336; R. v. Morrison, Ont. 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. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. An appropriation exists even where the victim consents to the appropriation. We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. Belonging to Another . A convicted person has a right of appeal upon questions of law alone. , G.A. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. This case, the obvious inspiration for Boston Legal episode Roe v Wade: The Musical, raises two important points: firstly a man deceived into creating a baby still has financial obligations to that child irrespective of deception and secondly even if deception is involved a father still has no right to be consulted in whether the pregnancy is terminated or not. There is an Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 217 A (III), U.N. Doc. (2d) 343 (Que. While the interpretation was given in respect of the Canadian Bill of Rights, it is equally applicable to the phrase as used in the Charter. 5, 9, as am. This desirable purpose may be served in the actual sentencing process by the exercise of judicial discretion within the wide range of sentencing options not coming within the s. 12 prohibition. Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose [p. 331]. Thus, any comments on the meaning of s. 12 must be made with s. 9 in mind and, as whenever ss. It has been aptly observed that 'Of all crimes manslaughter appears to afford most difficulties of definition'. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. (2d) 401, that the death penalty for murder was not cruel and unusual punishment. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. I have already stated, in respect of s. 12, that it is my view that s. 5(2) of the Narcotic Control Act does not impose punishment arbitrarily. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. There was a legal obligation to return the money received by mistake. Justice Hartman of the Appellate Court of Illinois said: Plaintiff [Dr. Phillips] asserts that defendant committed the tort when she took his semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to [another man]. 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. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. Trafficking in any of them is a serious offence. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: "sometimes yes, and sometimes no". 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. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. With the landlords permission, he installed some sound equipment and soundproofing material. 471; R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Added to that potential is the certainty that upon conviction a minimum of seven years' imprisonment will have to be imposed. One must also measure the effect of the sentence actually imposed. (2d) 556, [1974] 1 W.W.R. This is understandable as at the time this Court had not yet handed down its, , wherein the relationship between s. 7 and ss. 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. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 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". 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. 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. Held: At first instance the defendant was convicted of theft. He said: First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate theme.g., use of the rack, the thumbscrew, or other modes of torture [p. 330]. A narcotic is defined at s. 2 of the Act: "narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule; This definition refers to a schedule which lists some twenty substances and the preparations, derivatives, alkaloids and salts thereof, and for some, such as cannabis, the similar synthetic preparations. But that does not mean that judges have been authorized to substitute their opinion for that of the Legislature which under our democratic system is empowered to enunciate public policy. 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. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. [para. Universal Declaration of Human Rights, G.A. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? (3d) 42 (Ont. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. In any event, I find it would be dangerous to approach our "cruel and unusual" punishment section on the rationale of equality and conclude that uniformly applied, through mandatory imposition or otherwise, a sentence could no longer, on the basis of arbitrariness, be considered cruel and unusual. R. v. Smith. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. (3d) 1 (F.C.T.D. The defendant obtained authority from the manager to supply the goods. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. 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. The word force is to be given its ordinary meaning and requires no direction to the jury. Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence [p. 331]. 27th Jun 2019 In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. There are, in my view, three important components of a proportionality test. Extract. What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. Article 7 of the International Covenant on Civil and Political Rights, G.A. The jury were entitled to find that force had been used. 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. 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. These same standards were expressly adopted by Heald J. in McCann v. The Queen, supra, at p. 601; by Borins J. in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. Where Do We Look for Guidance?" (3d) 49 (N.W.T.C.A. (2d) 316 (Ont. The minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act fails the proportionality test and therefore prima facie infringes the guarantees established by s. 12 of the Charter. This legislative determination does not transform the sentencing procedure into an arbitrary process. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. 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. Facts: The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the Narcotic Control Act, is arbitrary, because it "must be imposed by the trial judge without regard to the type or amount of narcotic imported or exported, nor its intended use, nor to the criminal history or background of the accused". 1970, c. P6, s. 24, as amended). The trial judge directed the jury to acquit. One new video every week (I accept requests and reply to everything!). He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. 1970, c. N1, is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. 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. As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. 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. Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. Later, in Solem v. Helm, supra, any question of whether the concept of cruel and unusual punishment could be extended to include excessive sentences, as well as barbaric ones, was set at rest. Gender-based violence in general. 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. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. Present: Dickson C.J. 22]. Ct., Sept. 23, 1985, unreported, provide a good example, at p. 15: 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. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. (3d) 233; Re B.C. Viewed in the light of the other sentences which are currently provided for in Canadian law and considering the length of the sentence which will actually be served and the severity of the offence, I am unable to say that the minimum sentence in s. 5(2) of the Narcotic Control Act is such as to outrage the public conscience or be degrading to human dignity. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. This ensures that a punishment will not be imposed without reason or standards. Appeal allowed. 1970, c. C34, ss. I offer no opinion as to what a court would decide in respect of any of these examples of treatment should a challenge be made. 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