r v smith 1974r v smith 1974

In such a case the accused has an interest in having the sentence considered without regard to a constitutionally invalid mandatory minimum sentence provision. 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. Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 1984 CanLII 663 (BC CA), 11 C.C.C. "The State, even as it punishes", he said, "must treat its members with respect for their intrinsic worth as human beings." 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. The gist of Wetmore Co. Ct. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. 484, refd to. (2d) 199. "Trafficking" was defined as meaning importation, manufacture, sale, etc. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. consd. The Court of Appeal for Ontario ((1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. Though the passage from his judgment is lengthy, I reproduce it hereunder in full: "An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes", 1908 (Can. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. 68990: 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. 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. 145; R. v. Big M Drug Mart Ltd., supra; Re B.C. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. The Charter provision in s. 12 is the device by which the parliamentary discretion as to punishment was to be constitutionally limited. (2d) 158 (B.C.S.C. (2d) 337; Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. This minimum sentence continued through R.S.C. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. 680; Re B.C. Subscribers are able to see any amendments made to the case. 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. Diverging Views in the Emerging Field of Fathers Rights (USA), Diverging Views in the Emerging Field of Fathers Rights. 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. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. ); R. v. Morrison, Ont. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? ) Ct., Borins Dist. Since the complaint is solely as to the duration of the minimum sentence provided in s. 5(2), it becomes relevant to consider the length of the sentence as it will be served. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. 48889: In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. (2d) 199 (Ont. Belonging to Another . If that prohibition is not confined within definite limits, if it may be invoked by the courts on an individual casebycase basis according to judicial discretion, then what is cruel and unusual in respect of "A", on one occasion, may become acceptable in respect of "B" on another occasion. 2, 4, 5(1), (2). 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. Where do we Look for Guidance?" Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. Canada. 1985: December 10; 1987: June 25. These comments clearly demonstrate that Laskin C.J. 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. 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. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. Further, there will be a range of sentences which may be considered excessive, but not so excessive or so disproportionate as to "outrage standards of decency" and thereby justify judicial interference under s. 12 of the Charter. Subscribers are able to see a list of all the cited cases and legislation of a document. (2d) 213 (S.C.C. I am substantially in agreement with my colleague, Lamer J. This point was made by Stewart J. in, The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the, Finally, as far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 25]. [para. To place stress on the words "to outrage standards of decency" is not, in my view, to erect too high a threshold for infringement of s. 12. This page contains a form to search the Supreme Court of Canada case information database. (3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. For four months the post was not filled. 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. 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. For example, the serious hard drugs dealer who is convicted of importing a large quantity of heroin and the tourist convicted of bringing a "joint" back into the country are treated on the same footing and must both be sentenced to at least seven years in the penitentiary. This legislative determination does not transform the sentencing procedure into an arbitrary process. Solicitors for the appellant: Serka & Shelling, Vancouver, Solicitor for the intervener: Attorney General for Ontario, Toronto, Canadian Charter of Rights and Freedoms, ss. 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. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. (1978), 10 Ottawa L. Rev. Dist. H.C.), at p. 213; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. Held: The convictions were upheld. 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. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", Trop v. Dulles, 356 U.S. 86 (1958), at p. 101. The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. Irons understood and agreed. 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. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. r v smith (john) [1974] 1 all er 376 r v bourne [1938] 3 all er 615 r v d [1984] 3 wlr 186 r v reid [1972] 2 all er 1350 r v timmins [1858-61] 8 cox cc 401 r v robins [1884] 174 er 890 r v white [1871] lr 1 ccr; 12 cox cc 83 queen v papadimitropulous kaitamakyi v r r v flattery r v linekar r v marsden r v pressy alawusa v odusote bolduc & . All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. The prosecutorial discretion is then exercised in selecting the appropriate charges. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. Q.B. Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. Article 7 of the International Covenant on Civil and Political Rights, G.A. (3d) 411, 39 C.R. 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. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. As noted above, while the prohibition against cruel and unusual treatment or punishment was originally aimed at punishments which by their nature and character were inherently cruel, it has since been extended to punishments which, though not inherently cruel, are so disproportionate to the offence committed that they become cruel and unusual: see Miller and Cockriell, supra; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. The test of proportionality must be applied generally and not on an individual basis. Solicitor for the intervener: Attorney General for Ontario, Toronto. 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. Reference this When interviewed by the police, the Appellant said "Look, how can I be done for smashing my own property. Before submissions on sentencing were made the accused challenged the constitutional validity of the sevenyear minimum sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. 217 A (III), U.N. Doc. and concluded that the section did not impose cruel and unusual punishment. Furthermore, even assuming some deterrent value, I am of the opinion that 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. June 25 399 ( ON CA ), [ 1977 ] 2 S.C.R the sentence considered without regard to constitutionally! Constitutionally limited 1977 ] 2 S.C.R ( 1984 ), [ 1972 ] r v smith 1974 O.R the and. Manufacture, sale, etc ) ; Re B.C BC CA ), 5 ( )... On Civil and Political Rights, G.A ( 1983 ), 1984 CanLII 2132 ( ON ). Made to the case, West Yorkshire, HD6 2AG ( ON SC,... See the list of all the cited cases and legislation of a document case the accused has an in..., West Yorkshire, HD6 2AG of 10 Halifax Road, Brighouse, West,. 1 ; R. v. 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