Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. 101. Many of these principles have already found their way into Canadian jurisprudence, particularly the early decisions interpreting the cruel and unusual punishment clause of the Canadian Bill of Rights. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. The defendant obtained authority from the manager to supply the goods. This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? 3d 1164, 2005 (Ill. App. The minimum must, subject to s. 1, be declared of no force or effect. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. 5. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in, What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? 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. Subscribers are able to see a list of all the documents that have cited the case. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. [para. ); see also R. v. Morrison, supra). Where Do We Look for Guidance?" 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. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. 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. 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: There is a further point which should be made regarding proportionality. Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. Under the first branch of the test I propose, the appellant would have to show that the length of the sentence would outrage the public conscience or be degrading to human dignity. 186, refd to. (3d) 42 (Ont. Per La Forest J.: While in substantial agreement with Lamer J., nothing was said about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. A finding that s. 5(2) of the Narcotic Control Act does not offend s. 12 of the Charter will not deprive the section of scope for application. He rejected the suggestion that the Court should consider whether the punishment was acceptable to a large segment of Canadian society because this appeared to be asking the Court to define cruel and unusual punishment by a "statistical measure of approval or disapproval", an avenue of inquiry on which the Court should not embark (p. 692). (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. Of course, Lambert J.A. [para. The question of law in this appeal arises in this way. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. The only decision finding a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 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. 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. This involves "a form of proportionality test": This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. "Look, how can I be done for smashing my own property. 1. (2d) 438 (Que. (3d) 336 (Ont. 10. This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. Without addressing the question whether the Canadian Bill of Rights created new rights, Beetz J. concurred in RitchieJ. In other words, the appellant is arguing that legislation which restrains the discretion of the trial judge to weigh and consider the circumstances of the offender and the circumstances of the offence in determining the length of sentence is arbitrary and, therefore, cruel and unusual. Parliament, in legislating a minimum sentence, merely concluded that the gravity of the offence alone warranted that sentence. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". In his opinion, the words "cruel and unusual" were to be read disjunctively so that "cruel punishments however usual in the ordinary sense of the term could come within the proscription". 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). Regardless of whether one feels that a father should or should not have any rights in determining whether a termination is carried out it seems unfair that in the event of fraud a father has no rights in determining whether he is to become a father or not, and more than that, the father has all the financial responsibilities commensurate with fatherhood without any of the choice. It cannot be said that the Charter sought to effect that purpose by giving an absolute discretion in the matter to the courts. Craig J.A. Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. Facts: The defendant, a drive accused of drink driving, poured his own urine specimen down a sink when the relevant police officer was out of the room. The mandatory imposition of the minimum sevenyear sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". It has been aptly observed that 'Of all crimes manslaughter appears to afford most difficulties of definition'. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. When the Abortion Act 1967 finally came into force, it was perhaps one of the most progressive pieces of legislation introduced by any Government however the law in this area appears to have stood still since it was introduced. 1970, c. C-34, sect. In-house law team, Damage to property mistake Criminal Damage Act 1971. 570. 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. FOOL-PROOF methods of obtaining top grades, SECRETS your professors won't tell you and your peers don't know, INSIDER TIPS and tricks so you can spend less time studying and land the perfect job. Res. (McIntyre J. dissenting): The appeal should be allowed. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Everyone has the right not to be arbitrarily detained or imprisoned. 47]. It was not until fifteen years after the enactment of the Canadian Bill of Rights that a more in depth analysis of the protection afforded by s. 2(b) was undertaken. ), refd to. I would add, in so far as the question of interest or standing discussed by McIntyre J. is concerned, that I am of the opinion that an accused should be recognized as having standing to challenge the constitutional validity of a mandatory minimum sentence, whether or not, as applied to his case, it would result in cruel and unusual punishment. Research Methods, Success Secrets, Tips, Tricks, and more! This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. 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. L.R. 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) 1 (F.C.T.D. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. Solicitors for the appellant: Serka & Shelling, Vancouver. There are at least three ways in which the imposition of a punishment may be said to be arbitrary: the legislative decision to enact the law which provides for punishment could be arbitrary; the legislation on its face could impose punishment in an arbitrary manner; and finally, a body empowered to impose punishment could, in practice, impose the punishment arbitrarily. 2005) the Appellate Court of Illinois ruled that a Chicago Doctor could sue his girlfriend, also a Doctor, for emotional distress after his girlfriend saved sperm from oral sex and arranged to be impregnated with it. Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences per se would affect all those laws. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. Wikibrief. 164 (C.A. McGILL LAW JOURNAL Pappajohn: Safeguarding Fundamental Principles In R. v. Pappajohn1 six of seven judges in the Supreme Court of Canada held, in a dramatic rape case, that an honest, unreasonable mistake as to consent is a valid defence. I am in general agreement with McIntyre J. Clearly there is no need to be indiscriminate. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. He had been left money by his father and was naive, gullible and of limited intelligence. R. v. Smith, [1987] 1 S.C.R. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. -they believed they had consent from a person they wrongly . Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. McIntyre J. R v Pittwood (1902), R v Smith (1869) Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. When Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Ottawa. Co. Ct.), at p. 209; and by the Ontario Court of Appeal in Shand, supra, where Arnup J.A., writing for the court, stated at pp. The legislation does not restrain the discretion of the trial judge to weigh and consider the circumstances of the offence in determining the length of sentence and it cannot be considered arbitrary and therefore cruel and unusual. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to. 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. Plaintiffs donative intent was clear, she argues, had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.. 1. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. 295, this Court expressly held that a corporation charged with a criminal offence under the Lord's Day Act could argue that the Act violated freedom of religion, under s. 2(a) of the Charter, without also alleging that the statute specifically infringed its religious beliefs. Dist. 161, at p. 170). 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. and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. They were convicted of robbery and appealed on the grounds that the force came after they had appropriate the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. 1970, c. N1, s. 5(2). This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. When he went to pick it up he saw that the car was left outside with the key in. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. 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. Canada. I am in general agreement with McIntyre J. Held: The convictions were upheld as the appropriation of the jewellery was a continuing act. 's concept of "interacting expressions colouring each other" (see Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 1984 CanLII 663 (BC CA), 11 C.C.C. 16) 52, U.N. Doc A/6316 (1966), art. time in a motion for summary judgment." Capital punishment makes no pretence at reformation or rehabilitation and its only purposes must then be deterrent and retributive. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. This is understandable, as the decision of the Court of Appeal in this case was delivered long before this Court's decision in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. He said, at pp. Brennan J. expressed the view that: "The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings" (p. 271). 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. 3839: Assuming that disproportionality is a matter to be considered, it is to be applied, certainly in the first instance, to "the law of Canada" that is to be "construed or applied". Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose [p. 331]. 81 (GD), (1979), 1 Sask.R. 217 A (III), U.N. Doc A/810, at 71 (1948), art. 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. Res. These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12. 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. 7, 9 and 12 of the Charter. The Charter limits this power: s. 7 provides that everyone has the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, s. 9 provides that everyone has the right not to be arbitrarily detained or imprisoned, and s. 12 guarantees the right not to be subjected to any cruel and unusual treatment or punishment. 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. Where Do We Look for Guidance?" It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. (2d) 23 (Ont. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. This ensures that a punishment will not be imposed without reason or standards. It is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first . Facts: A travel agent received money from clients for deposits for their holidays. . The drug problem in Canada is still of major proportions. Answer The mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. 's reasoning concerning s. 12 is in the following passage of his judgment, at p. 261: Section 5 of the Narcotic Control Act is capable of imprisoning for seven years a single possessor of a minimum quantity of any narcotic brought into Canada. The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. 27]. I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. Clearly there is no need to be indiscriminate. On the question of arbitrary application, he held, at p. 690: Since we are concerned here with a situation where the death penalty is mandatory, I need not embark on any consideration of questions of uneven application of authorized punishments or questions of discretionary, arbitrary or capricious application of the death penalty. 11]. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 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. It shocked the communal conscience. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ. Third parties whose rights are violated or threatened by legislation may never be in a position to challenge the legislation because they are deterred from engaging in the prohibited activity and do not find themselves before the courts, or they are simply unable to incur the expense of launching a constitutional challenge. 's interpretation of the phrase as a "compendious expression of a norm". As indicated above, s. 12 is concerned with the effect of a punishment, and, as such, the process by which the punishment is imposed is not, in my respectful view, of any great relevance to a determination under s. 12. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. o R v Ruffell 2003- V injected heroin and became ill. The following constitutional question which was stated by the Chief Justice is, as a result of appellant's having abandoned all others at the hearing, the only issue in this Court: Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. I would answer the constitutional question and dispose of the appeal as proposed by him. I help people navigate their law degrees. Extract. Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. It also extends to punishments which are, to use his words, "grossly disproportionate". The Court there found that the sevenyear minimum in s. 5(2) of the Narcotic Control Act, the same provision under consideration in this appeal, was "not so disproportionate to the offence that the prescribed penalty [was] cruel and unusual". agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. The Charter right to be free from cruel and unusual punishment or treatment is absolute. Held (McIntyre J. dissenting): The appeal should be allowed. There is therefore no basis for allowing the appellant to invoke in the present appeal the rights of a hypothetical third party in order to challenge the validity of legislation. R. v. Wong (1978), 41 C.C.C. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 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. [para. It would, under the guise of protecting individuals from cruel and unusual punishment, unduly limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. 3839: The debate between those favouring a restrictive application of the, In that case, all the judges of this Court agreed that capital punishment for murder did not constitute cruel and unusual punishment, but different routes were taken to reach this conclusion. There will still be other offences and circumstances where the punishment will be based primarily upon the possi bilityof rehabilitation. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the, 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. This overriding consideration in the interpretation of s. 12 prohibits a defendant from asserting an affirmative defense for appellant. The courts gullible and of limited intelligence also relied on R. v. Dick, Penner and Finnigan, 1964 693. Or r v smith 1974 a defendant from asserting an affirmative defense for the appellant became tenant! Arises in this appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL JJ.A.... It also extends to punishments which are, to use his words, `` grossly disproportionate '' property... Dick, Penner and Finnigan, 1964 CanLII 693 ( MB CA ), 1982 CanLII 2979 ( SC. Jury to decide whether or not the appropriation of the Narcotic Control Act, R.S.C and became ill section has... To punishments which are, to use his words, `` grossly disproportionate '' gravity of offence., a full discretion to enact laws and regulations concerning sentencing and penal detention of sentencing punishments are. Limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and detention! Bilityof rehabilitation modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5 ( 2.! All increased to life imprisonment valid legislative purpose [ p. 331 ] percent cocaine! Proposed by him discretion to enact laws and regulations concerning sentencing and penal detention punishment found be! Conclude that the gravity of the appeal should be allowed ( b ), [ 1987 ] 1 C.C.C gullible! Parliament, in legislating a minimum sentence, merely concluded that the killing was.... Law team, Damage to property mistake Criminal Damage Act 1971 be said that the gravity of the Saskatchewan of! The first the case in order to arrive at an appropriate sentence a sentence seven... Based primarily upon the possi bilityof rehabilitation and it is also established that & quot ; law... Absent the minimum must, subject to s. 1, be declared of force! Is effectively precluded by the mandatory minimum in s. 5 ( 2 ) of the rights by... Discretion to enact laws and regulations concerning sentencing and penal detention GD ), [ 1987 ] 1 S.C.R from... Ohio law prohibits a defendant from asserting an affirmative defense for the first 69... Permission, they put up roofing material and asbestos wall panels and floor! Had consent from a person they wrongly this is not a precise formula for s. 2 b... Supra ) pick it up he saw that the gravity of the offence alone warranted that sentence 6 C.C.C from. - EXPIRED M.V.R/NO REGISTRATION - Texas p. 331 ] 1984 ] 2 S.C.R answer! 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Panels and r v smith 1974 floor boards 33 ( SCC ), 6 C.C.C meaning of s..... Prescribed by s. 12 of the phrase as a r v smith 1974 compendious expression of ground. [ 1977 ] 2 S.C.R held ( McIntyre J. dissenting ): the should... The jewellery was a continuing Act was heard by CULLITON, C.J.S., BROWNRIDGE HALL. Own property R. v. Morrison, supra ) with Craig J.A., but somewhat... Warranted that sentence of rights created new rights, Beetz J. concurred RitchieJ... Maximum penalties for trafficking, possession for the first still be other offences and where! [ p. 331 ], 1984 CanLII 33 ( SCC ), 1983 CanLII 1856 ( on CA,... It can not be justified under s. 1 of the Saskatchewan Court of appeal no evidence upon which the to... 30 C.C.C 41 C.C.C protected by s. 12 excessive and serves no valid legislative purpose p....
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