I am unable, however, with great respect, to agree with his conclusion that the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act does not infringe the right guaranteed by s. 12 of the Charter. It was irrelevant to consider whether such a belief was justifiable or not as if the individual believed the property was his own, he lacked mens rea at the time of the act. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. 783. When Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. ), at pp. + C $3.00 shipping. If there be a rational reason for the policy then I do not think it is for a judge to say that the policy is capricious, unreasonable or unjustified. At pages 69394 of his judgment, he states: Justice Brennan propounded a cumulative test, which represented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. The minimum must, subject to s. 1, be declared of no force or effect. largely adopted the tests enunciated in the American cases and the earlier Canadian case considered above. A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. R v Smith (Thomas Joseph), [1959] 2 QB 35, 43 Cr App R 121, [1959] 2 WLR 623, [1959] 2 All ER 193, CCA: chain of causation, homicide R v Smith (1988) 10 Cr App R (S) 434 Canada [ edit] R v Smith (1987), 1 S.C.R. (2d) 337. 680. Recognizing this fact, the appellant does not attack s. 5(2) of the Narcotic Control Act on the ground that it violates s. 12 of the Charter in general, but rather on the ground that the imposition of "a mandatory minimum sentence of seven years" on a hypothetical "first time importer of a single marijuana cigarette" would constitute cruel and unusual punishment. In his opinion, the non constitutional nature of the Canadian Bill of Rights required the application of traditional rules of interpretation. The Attorney General referred a question to the Court of Appeal. 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. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. 's interpretation of the phrase as a "compendious expression of a norm". 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]. 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. 1970, c. N1, ss. 121, per Rand J., at pp. R. v. Widdifield, 6 C.R.L.Q. in his concurring, minority. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. (2d) 401; R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. Held: At first instance the defendant was convicted of theft. C.A. 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 my view, this proposition cannot be accepted. The limitation at issue here is s. 12 of the Charter. Co. Ct., Mossop Co. Ct. J., July 7, 1983, unreported). The prohibition is in absolute terms. 47]. 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. 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. The expression "cruel and unusual punishment" was first found in the English Bill of Rights of 1688, 1 Wm. They failed to diagnose that his lung had been punctured. The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. Res. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. 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. Those nonusers, who import and traffic in such noxious drugs as heroin, are slave masters and responsible not only for the destruction of numerous human beings, but also for the very extensive criminal activity which is spawned by the drug trade. 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. 68990) it was so unusual as to be cruel and so cruel as to be unusual. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. In a summary he wrote, at pp. 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. Given this concession and my conclusion that the minimum is of no force or effect, I would so order. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. 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. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. A sevenyear sentence for drug importation is not per se cruel and unusual. on appeal from the court of appeal for british columbia. 16) 52, U.N. Doc A/6316 (1966), art. 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. H.C.)), In the early years of the Canadian Bill of Rights, in those rare cases where s. 2(b) was the object of some judicial analysis, the application of the prohibition was either limited to the protection against the infliction of excessive and unusual physical pain (R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the Motor Vehicle Act, R.S.B.C. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 713). Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. 295, speaking for the majority of this Court, stated at p. 331: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. R v Pittwood (1902), R v Smith (1869) 8 to 14 was commented on and where the "principles of fundamental justice" were defined as providing more than just procedural protection under the section. R v Denton [1982] 1 All ER 65, [1982] Crim. 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. 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. You also get a useful overview of how the case was received. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches, Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. The courts, the Charter so commands, must examine challenged legislation in order to determine whether it infringes a right protected by the Charter. I am substantially in agreement with my colleague, Lamer J. 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 Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. Held: The convictions were upheld. 63]. I am, with all respect for the views of my colleagues, unable to reach their conclusion for reasons which I will endeavour to set out. Subscribers can access the reported version of this case. Is it unusually severe and hence degrading to human dignity and worth? In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. (3) Is it unacceptable to a large segment of the population? First, the measures adopted must be carefully designed to achieve the objective in question. D believed the fixtures belonged to him. 484, refd to. It must be remembered that s. 12 voices an absolute prohibition. (3d) 193 (Ont. The word force is to be given its ordinary meaning and requires no direction to the jury. 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. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. 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. Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. Held: He was liable for theft of his own car since the car was regarded as belonging to the service station as they were in possession and control of it. It was unexpected and unanticipated in its severity either by him or by them. Furthermore, even assuming some deterrent value, I am of the opinion it would be cruel and unusual if it is not in accord with public standards of decency and propriety, if it is unnecessary because of the existence of adequate alternatives, if it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards, and if it is excessive and out of proportion to the crimes it seeks to restrain. 1927, c. 144, s. 4, and R.S.C. Q.B. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. 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". As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under s. 12 of the Charter, does not appear to arise on the facts of the case. 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. 11]. H.C.), at p. 213; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 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". (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. Employing it here, and considering what was said in R. v. Shand with respect to the enactment of s. 5(2) of the Narcotic Control Act I am not persuaded that it violates either s. 7 or s. 9 of the Charter. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. 8354) Indexed As: R. v. Smith. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. 7, 9 and 12. Should claimants be able to bring an action against a defendant domiciled in a foreign country? 7. , R.S.C. 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. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. supra, at pp. 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. (2d) 564; McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. After taking the jewellery the two of them tied her up. Canadian Government Publishing Centre, 1987. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. In the United States, where criminal law is within the competence of the state legislatures and thus varies from state to state, the judiciary was concerned with possible discrepancies in the imposition of the death penalty throughout their country. 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Konechny ( 1983 ), [ 1982 ] 1 All ER 65, [ ]. Of theft gray area between the truly appropriate sentence and a cruel unusual!