He was uncertain as regards the proper approach to be taken when assessing whether legislation, which prima facie violates a section, can be salvaged under s. 1 of the Charter. was not satisfied by the Crown's efforts to salvage the section. At most, the divergence in penalties is an indication that the greater penalty may be excessive, but it will remain necessary to assess the penalty in accordance with the factors discussed above. I am in general agreement with McIntyre J. (1978), 10 Ottawa L. Rev. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. , G.A. 570, 29 C.C.C. ), refd to. 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. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). Relying heavily on American cases dealing with the Eighth Amendment of the Constitution of the United States, which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", and the analysis undertaken by McIntyre J.A. (3d) 26, 2 C.R.R. ), and the American cases; Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (2nd Cir. It also extends to punishments which are, to use his words, "grossly disproportionate". 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Ct. 1st Dist. Not every departure by a court or legislature from what might be called the truly appropriate degree of punishment will constitute cruel and unusual punishment. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? ) The prosecutorial discretion is then exercised in selecting the appropriate charges. A person convicted of importing a narcotic under s. 5 of the, I turn then to the second test which, of course, overlaps the first in some respects. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. The particular drugs that from time to time are in the greatest demand, or widest use, or are the greatest danger, may vary, but the basic problem remains. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. Shakespeare, T., "'Losing the Plot?' (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) Simple and digestible information on studying law effectively. The extent of the damage was 130. . 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 is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first . 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. (3)The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. Where do we Look for Guidance?" Dubai: From a small village of pearls to a thriving concrete metropolitan: unprecedented growth, but at what cost to human life? With the consent of the landlord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. 253 and 255). There can be no doubt that Parliament, in enacting the, The formation of public policy is a function of Parliament. It cannot be argued that arbitrariness or capriciousness resides in the limitation of the death penalty to the murder of policemen and prison guards, persons who are specially entrusted with the enforcement of the criminal law and with the custody and supervision of convicted persons. Subscribers are able to see the revised versions of legislation with amendments. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter. 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. For example, legislation which provided an essentially random process for determining punishment divorced from any consideration of the relationship between the punishment and the social objective to be achieved would be cruel and unusual, even if the punishment actually imposed were proportionate to the offence. 22]. (2d) 10, 141 D.L.R. 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. 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. 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. (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. (2d) 199 (Ont. They failed to diagnose that his lung had been punctured. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. : it must "outrage standards of decency". 783 (C.A. o R v Instan 1893- niece failed to care for aunt after moving in during illness. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. C.A. 3233: Without specific attribution as to the court that suggested it, it would be useful to consider the various specific tests that have been suggested: (1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? When interviewed by the police, the Appellant said. 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. 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. This case arose out of a charge of first degree murder. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. 16) 52, U.N. Doc A/6316 (1966), art. 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. 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. Parole Act, R.S.C. R v Smith, Plummer and Haines [2011] EWCA Crim 66, [2011] Crim LR 719. L.Q. 2023 Digestible Notes All Rights Reserved. ), (see, for example, W. S. Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. 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. Punishment not per se cruel and unusual, may become cruel and unusual due to excess or lack of proportionality only where it is so excessive that it is an outrage to standards of decency. 1019 (1893), at p. 1021). 70506: 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(b) of the Bill of Rights, to make any assessment of current community standards of morality or of the deterrent effect of the death penalty. Belonging to Another . This is understandable as at the time this Court had not yet handed down its decision in Re B.C. 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." ), at p. 53). (3d) 193 (Ont. 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. (3d) 306 (Ont. (3d) 233, also a decision of the British Columbia Court of Appeal. 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. Held: The convictions were upheld as the appropriation of the jewellery was a continuing act. Oxford v Moss (1979) 68 Cr App R 183. , (Eng. The concept of "the fit sentence" to which I made reference in my concurring reasons in Re B.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. 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. You also get a useful overview of how the case was received. R. v. Smith. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. 1970, c. C-34 - See paragraphs 23 to 27. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence. 69697 that he could not find "that there was no social purpose served by the mandatory death penalty so as to make it offensive to" the cruel and unusual punishment clause of the Canadian Bill of Rights. I know of no reported instances where the courts invoked that part of s.10 of the English, Experience in other countries regarding the, ), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (, It was not until fifteen years after the enactment of the, The Court of Appeal for British Columbia decided, in. 486, wherein the relationship between s. 7 and ss. 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. The courts, the, In neither case, be it before or after the. ), c. 17. 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. 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. How then should the concept of cruel and unusual treatment or punishment be defined? Canadian Charter of Rights and Freedoms, ss. R v. Smith (1974) 58 Cr. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. I would answer the constitutional question as follows: QuestionWhether the mandatory minimum sentence of seven years prescribed by s. 5(2) of Narcotic Control Act, R.S.C. 9. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. (2d) 196 (B.C.C.A. 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. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. 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? 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. These comments clearly demonstrate that Laskin C.J. 10]. 7, 9 and 12. 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. Facts: The defendant, a police woman, received an overpayment in her wages by mistake. The first minimum sentence of imprisonment had been enacted in 1922 (c. 36, s. 2(2)); it was six months. 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. 213 ; (1961), 6 Crim. I believe this is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment. and Lamer J.: The minimum sentence provided for by s. 5(2) of the, The undisputed fact that the purpose of s. 5(2) of the, The minimum term of imprisonment provided for by s. 5(2) of the, 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, The section, too, cannot be salvaged under, The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under, Le Dain J.: 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. In part this trend has prompted, in part it may have been a result of, legislative change. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. I believe, however, they can be collected and stated more succinctly, as follows: Dealing with the first test, is the punishment of such character or duration as to outrage the public conscience or be degrading to human dignity? With the landlords permission, he installed some sound equipment and soundproofing material. dealt thoroughly and exclusively with s. 9. 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. FREE courses, content, and other exciting giveaways. There is a further point which should be made regarding proportionality. He emphasized the need for a deterrent value in any punishment but affirmed that there were other factors to be considered and weighed against it, at p. 468: In my view, capital punishment would amount to cruel and unusual punishment if it cannot be shown that its deterrent value outweighs the objections which can be brought against it. 171 (Man. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. In his view, the treatment served no "positive penal purpose", and even if it did, "it [was] not in accord with public standards of decency and propriety". R v Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 All ER 651, CA (Civ Div) R v Smith, unreported, 13 February 1975; R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472; R v Smith (Percy) [1976] Crim LR 511, DC; R v Smith (Michael Stuart) 64 Cr App R 116, CA; R v Smith (Albert) (1976) 64 Cr App R 217, CA; That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. 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. On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. Yet, there is a law in Canada, s. 5(2) of the. (3d) 1 (F.C.T.D. 1970, c. P6, s. 24, as amended). ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. The sevenyear minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. Learn faster with spaced repetition. 2, 4, 5(1), (2). 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. , Eighth Amendment, Fourteenth Amendment. Today the only way [counsel for Mr Paton] can put the case is that the husband has a right to have a say in the destiny of the child he has conceived. 3. International Covenant on Civil and Political Rights, G.A. 186, refd to. 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