Judicial discretion to impose a shorter sentence if circumstances warrant is foreclosed and the inevitable result is a legislatively ordained grossly disproportionate sentence in some cases. 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. Februar 1975 There was a legal obligation to return the money received by mistake. 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. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled Sentencing Reform: A Canadian Approach (1987), which gives some support to my conclusion. Does the punishment go 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? This might not be so if the legislatively prescribed minimum was, for example, six months or a year because, although this might be arbitrary, it arguably would not be "so excessive as to outrage standards of decency". 11]. For example, a long term of penal servitude for he or she who has imported large amounts of heroin for the purpose of trafficking would certainly not contravene s. 12 of the Charter, quite the contrary. (3d) 336 (Ont. Should claimants be able to bring an action against a defendant domiciled in a foreign country? It was unexpected and unanticipated in its severity either by him or by them. It is because of that certainty that I find that the minimum mandatory imprisonment found in s. 5(2) is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees to each and every one of us that we shall not be subjected to any cruel and unusual treatment or punishment. 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. It seems to me that the law is not clear. 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]. 1970, c. N1, s. 5(2). C.A. Co. Ct.)). Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. [Emphasis added.]. The role of Parliament in the determination and definition of this aspect of public policy would be eliminated. relied on R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. 4 (Ont. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 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. While these expressions provide some assistance in defining the concept of arbitrariness, in my view the most important consideration is whether the punishment is authorized by law and imposed in accordance with standards or principles which are rationally connected to the purposes of the legislation. *You can also browse our support articles here >. 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. Held: At first instance the defendant was convicted of theft. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? It was "unusual" because of its extreme nature. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. 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. Irons understood and agreed. 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. (3d) 305, dismissing an appeal from sentence imposed by Wetmore Co. Ct. J. and overturning his ruling finding s. 5(2) of the Narcotic Control Act to be a contravention of s. 12 of the Canadian Charter of Rights and Freedoms, and hence of no force or effect. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. (3d) 353; R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. The importation of narcotics is not a constitutionally protected activity. 391, refd to. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. 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. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. (2d) 199; referred to: Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 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 Charter. He would have imposed a sentence of five years' imprisonment. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. The offence of importing opium was indictable, rendering the offender liable to imprisonment for three years or to a fine not exceeding $1,000 and not less than $50, or both fine and imprisonment. But that is precisely what has occurred in this case. 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. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. (3d) 306 (Ont. The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. (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. When Jordan arrived at the meeting point, the other appellants, Plummer and Haines, emerged from an alleyway where they had been hiding and attacked Jordan. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. 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. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. His third principle was: ". It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. Applied: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 13940; R. v. Simon (No. A punishment failing to have these attributes would surely be cruel and unusual. R v Smith [1974] 2 NSWLR 586. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. 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. 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. The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. Smiths defence was that he had an honest belief the property was his. Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter. On the contrary, I believe it is quite fundamental. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. 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. ); see also R. v. Morrison, supra). [para. In R v Smith [1974] 1 All ER 376, the only reported case involving prosecution under the Abortion Act 1967, the evidence indicated that the doctor had failed to carry out an internal examination and had made no inquiries into her personal situation. 61]. FREE courses, content, and other exciting giveaways. (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. Jordan handed over the heroin and they ran off. As regards this factor, some comments should be made, because arbitrariness of detention and imprisonment is addressed by s. 9, and, to the extent that the arbitrariness, given the proper context, could be in breach of a principle of fundamental justice, it could trigger a, This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. 2200 A (XXI), 21 U.N. GAOR, Supp. 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). 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. The section cannot be salvaged by relying on the discretion of the prosecution not to charge for importation in those cases where conviction, in the opinion of the prosecution, would result in a violation of the Char ter. This broadening process has been advanced, I suggest, in the Charter by the inclusion of the word "treatment" in s. 12, which was not in the original formulation of the prohibition in the English Bill of Rights nor in the Eighth Amendment to the American Constitution. It is not necessary, for reasons discussed above, to answer the question as regards ss. The certainty that all those who contravene the prohibition against importing will be sentenced to at least seven years in prison will surely deter people from importing narcotics. The rack and the thumbscrew, the stocks, torture of any kind, unsanitary prison conditions, prolonged periods of solitary confinement were progressively recognized as inhuman and degrading and completely inimical to the rehabilitation of the prisoner who sooner or later was going to have to be released back into the community. When interviewed by the police, the Appellant said. It was "unusual" because of its extreme nature. 1 (B.C.C.A. Notwithstanding his conclusion to the contrary, the test for cruel and unusual punishment under s. 12 of the Charter should generally be that of McIntyre J., including his approach to the application of disproportionality and arbitrariness. [para. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 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. Digestible Notes was created with a simple objective: to make learning simple and accessible. However, he chose not to make an order "declaring s. 5(2) of the Narcotic Control Act, or the last six words of it, to be unconstitutional", and decided only that s. 5(2) was not applicable to the accused Smith. Subscribers are able to see any amendments made to the case. 25]. (2d) 158 (B.C.S.C. . 39; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. 1979, c. 288. The test of proportionality must be applied generally and not on an individual basis. Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships 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. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. "Trafficking" was defined as meaning importation, manufacture, sale, etc. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches s. 12 of the Charter and this breach has not been justified under s. 1. [para. The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter. 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. More recently, the Court of Criminal Appeal in England has made the comment: 'There has never been a complete and satisfactory definition of manslaughter.'. No issue arises on this point in this case. The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. As regards this factor, some comments should be made, because arbitrariness of detention and imprisonment is addressed by s. 9, and, to the extent that the arbitrariness, given the proper context, could be in breach of a principle of fundamental justice, it could trigger a prima facie violation under s. 7. 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. ), c. 35, was introduced and passed. 63]. 164 (C.A. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". (3d) 49 (N.W.T.C.A. (3d) 324 (Ont. 5. 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. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him. Report of the Canadian Sentencing Commission. 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. , G.A. 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. 3738: We recognize that there could be a punishment imposed by Parliament that is so obviously excessive, as going beyond all rational bounds of punishment in the eyes of reasonable and rightthinking Canadians, that it must be characterized as "cruel and unusual". 2, c. 2, which states: 10. In-house law team, Damage to property mistake Criminal Damage Act 1971. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? 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. 1970, c. C34, and other penal statutes. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. 152, 68 C.C.C. This page contains a form to search the Supreme Court of Canada case information database. (2d) 199 (Ont. Per Wilson J.: Section 12 of the Charter, although primarily concerned with the nature or type of treatment or punishment, is not confined to punishments which are in their nature cruel and extends to those that are "grossly disproportionate". A punishment failing to have become obsolete by the early twentieth century ( Hobbs! Arbitrary nature of the legislation convicted of theft would have imposed a sentence of five years ' imprisonment punishment to. The importation of narcotics is not clear s.12 of the Saskatchewan Court of appeal h.c. ;. The same ground as other rights set out in the Charter ( 1983 ), R. Big... 32 N.E this involves `` a form of proportionality must be applied generally and not on an individual.. 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