Criminal Code of Canada, R.S.C. 4 (Ont. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts on some people a severe punishment that it does not inflict upon others. Subscribers can access the reported version of this case. Irons] responds that where plaintiff did not loan or lease his sperm, where there was no agreement that the original deposit would be returned upon request, or where the transaction did not create a bailment She asserts that when plaintiff delivered his sperm to defendant it was a gift-an absolute and irrevocable transfer of title to property from a donor to donee. It brings within the prohibition in s. 12 not only punishment imposed by a court as a sentence, but also treatment (something different from punishment) which may accompany the sentence. , for the intervener the Attorney General for Ontario. This case, the obvious inspiration for Boston Legal episode Roe v Wade: The Musical, raises two important points: firstly a man deceived into creating a baby still has financial obligations to that child irrespective of deception and secondly even if deception is involved a father still has no right to be consulted in whether the pregnancy is terminated or not. (2)Every person who violates subsection (1) is guilty of an indictable offence and is liable to imprisonment for life but not less than seven years. 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. 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. 11]. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. We do not provide advice. I am in general agreement with McIntyre 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. While no such case has actually occurred to my knowledge, that is merely because the Crown has chosen to exercise favourably its prosecutorial discretion to charge such a person not with the offence that that person has really committed, but rather with a lesser offence. It would not be permissible to impose a punishment which has no value in the sense that it does not protect society by deterring criminal behaviour or serve some other social purpose. Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? ) With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. R. v. Mitchell, [1965] 1 C.C.C. It is the judge's sentence, but not the section, that is in violation of the Charter. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. (3d) 233 (B.C.C.A. *Chouinard J. took no part in the judgment. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. In the meantime the Bill of Rights had been enacted. Glazebrook, The Necessity Plea inEnglish Criminal Law [1972] CLJ 87.2Smith (D.R. Everyone has the right not to be arbitrarily detained or imprisoned. When interviewed by the police, the Appellant said. Gender-based violence in general. 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. Ball v McIntyre (1966) 9 FLR 237, 245. In this latter regard I share the view of Mr. Justice Robertson that, having regard to the fact that the death penalty for murder had been a part of the law of England from time immemorial and that, at the time when this murder was committed and the trial was held, it had been a feature of the criminal law of Canada since Confederation, it cannot be said to have been an "unusual" punishment in the ordinary accepted meaning of that word. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. C.A. It was not asserted before usnor could it bethat imprisonment, as regulated by Canadian law, is of such character that it would outrage the public conscience or be degrading to human dignity. After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. Now to deal with the appellant. ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.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. 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. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that ". It also extends to punishments which are, to use his words, "grossly disproportionate". The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. 1970, c. C-34, sect. Facts: Hinks, a young mother, befriended a 53 year old man called John Dolphin. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. In my opinion, however, this rationale should apply in general only to laws which could be saidto adopt a term known in American constitutional usageto have a "chilling effect" upon the exercise by others of their constitutional rights. Punishments may undoubtedly be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed. The Court of Appeal ruled that s. 5(2) was not inconsistent with the Charter and found the sentence imposed to be appropriate. 217 A (III), U.N. Doc A/810, at 71 (1948), art. 1970, c. N1, s. 5(2). 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. If two offenders have identical histories and characteristics and have committed the same offence in the same circumstances, legislation could not mandate that they be given different punishments. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. The courts, the Charter so commands, must examine challenged legislation in order to determine whether it infringes a right protected by the Charter. It is true that the enactments of Parliament must now be measured against the Charter and, where they do not come within the provisions of the Charter, they may be struck down. Parole Act, R.S.C. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter. There is no problem of definition nor of recognition of cruel and unusual treatment or punishment at the extreme limit of the application, but of course the day has passed when the barbarous punishments of earlier days were a threat to those convicted of crime. ", That certificate, on the face of it, sets out a question of law as the ground on which it is granted. Of course, the means chosen do "achieve the objective in question". There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. Smith, R v [1979] (Crown Court) Speck, R v [1977] 2 ALL ER 859 (CA) Stone and Dobinson, R v (1977) 1 QB 354 (CA) Yuthiwattana, R v (1984) 16 HLR 49 (CA) Subscribe on YouTube. . In this development great assistance can be obtained from the American precedents, across their rather broad spectrum, and to a lesser extent, from some of the articles in the American periodicals. : 18561. 102 (B.C.S.C. Where do we Look for Guidance?" Her duties were not quite the same as those of Mr McCullough. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. Furthermore, recourse to American jurisprudence on the Eighth Amendment as an aid to interpreting s. 2(b) of the Canadian Bill of Rights was considered inappropriate as the documents involved were quite different. Extract. By way of summary, I express the view that s.12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing nor with related social problems. Research Methods, Success Secrets, Tips, Tricks, and more! Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. 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". These same standards were expressly adopted by Heald J. in McCann v. The Queen, supra, at p. 601; by Borins J. in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. 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. A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual. Ct., Borins Dist. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. It was unexpected and unanticipated in its severity either by him or by them. (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. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 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. 2200 A (XXI), 21 U.N. GAOR, Supp. R. 106, in which a doctor was convicted for lack of good faith in authorising an abortion under s. 1 (1) (a) of the Act. The prohibition is in absolute terms. 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. If the impugned law or practice does not prohibit any individual from engaging in a constitutionally protected activity, there is no basis for allowing parties before the court to invoke the rights of hypothetical third parties in support of their challenge. 783. 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. 39]. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. 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? The written stories, however, depicted explicit sex and violence. In the present appeal, the Crown had but one argument. 109899 v. : . 152, 68 C.C.C. 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. European Convention for the Protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. Parole Regulations, SOR/78428, ss. Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434: I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. The drug problem in Canada is still of major proportions. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. In my opinion, however, this rationale should apply in general only to laws which could be saidto adopt a term known in American constitutional usageto have a "chilling effect" upon the exercise by others of their constitutional rights. It may well be excessive, but more than excess is required to meet the test of Laskin C.J. Whilst it can be foreseen that the likely result of an action to actively bring about a termination would result in the same rulings as cases preventing a termination a remarkable case from Chicago, Illinois offers pause for thought. In so doing, the courts will apply the general principles of sentencing accepted in the courts in an effort to make the punishment fit the crime and the individual criminal. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. This case arose out of a charge of first degree murder. The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. (3d) 363 (N.S.C.A. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. This would not provide an acceptable basis for constitutional determination. [para. Digestible Notes was created with a simple objective: to make learning simple and accessible. 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". A sevenyear sentence for drug importation is not per se cruel and unusual. Thus, any comments on the meaning of s. 12 must be made with s. 9 in mind and, as whenever ss. He then dishonestly dissipated the credit in his account. It was "unusual" because of its extreme nature. It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". Finally, this punishment was imposed in accordance with standards or principles rationally connected to the purposes of the legislation. 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. 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. ), refd to. 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. What is unconstitutional for one must be unconstitutional for all when charged with the same offence. He would have imposed a sentence of five years' imprisonment. 10]. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. Subscribers are able to see a list of all the cited cases and legislation of a document. (2d) 199; referred to: Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. I agree with Lamer J. that the mandatory minimum sentence feature of s. 5(2) is not saved by s. 1 because the means employed to achieve the legitimate government objective of controlling the importation of drugs impairs the right protected by, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of, The mandatory minimum sentence of seven years prescribed by s. 5(2) of the, 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, I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. The Charter right to be free from cruel and unusual punishment or treatment is absolute. However, be that as it may, the courts have shown some lingering reluctance to interfere with the wisdom of Parliament in enacting the laws that are challenged. APPEAL from a judgment of the British Columbia Court of Appeal (1984), 1984 CanLII 663 (BC CA), 11 C.C.C. He took the car without paying for the repairs. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. The dissenting judge would have imposed a sentence of five years. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. However, the potential that such a person be charged with importing is there lurking. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. 7 and 9. 61]. I turn then to the second test which, of course, overlaps the first in some respects. Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Finally, I should add that some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed, or, to give examples of treatment, the lobotomisation of certain dangerous offenders or the castration of sexual offenders. 15 See R v Hawke, (1974) 2 OR (2d) 210 (ONHCJ); R v MacLean, [1975] BCJ No 1017, 27 CCC (2d) 57 (BCCC); R v Smith, [1974] BCJ No 776, 22 CCC (2d) 268 (BCSC). Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 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; 570, 29 C.C.C. 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. 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. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. Ct.), and Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. So is the unauthorized manufacture of the proscribed chemical drugs. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. It becomes clear, then, that while the barbarous punishments of the past which called into being the prohibition of some three centuries ago are mercifully unlikely to recur, the prohibition is saved from any suggestion of obsolescence by the addition of the word "treatment". The protection offered by s. 12 of the Charter governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). 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. (3d) 49 (N.W.T.C.A. R v Smith [1959] 2 QB 35 CAUSATION Facts The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. "Look, how can I be done for smashing my own property. (1978), 10 Ottawa L.R. Report of the Canadian Sentencing Commission. (Proportionality is to be determined on a general rather than an individual basis.) Section 1 of the Criminal Appeal Act 1968, (2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.". There can be no doubt that Parliament, in enacting the, The formation of public policy is a function of Parliament. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. 16) 52, U.N. Doc. Instead, the appellant argued that, in certain cases, the minimum sentence of seven years' imprisonment, solely because of its length, could be so excessive and disproportionate to the offence committed that it would amount to cruel and unusual punishment. That case and others may have to be given limited interpretation in due course if it is concluded that the, Accordingly, I propose to treat the concluding words "but not less than seven years" in s. 5(2) of the Narcotic Control Act inoperable as being in contravention of, Smith's appeal was dismissed by the Court of Appeal for British Columbia (, , also a decision of the British Columbia Court of Appeal. (3d) 129; R. v. Guiller, Ont. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. 1970, App. 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. (2d) 401, that the death penalty for murder was not cruel and unusual punishment. It seems to me that the law is not clear. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. An appropriation exists even where the victim consents to the appropriation. Belonging to Another . o R v Ruffell 2003- V injected heroin and became ill. The judicial discretionstill a very wide oneis then exercised, within the framework of the penalties legislated, to decide what penalty is appropriate for the particular offender in all of the circumstances of the particular case. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. ( 2 ) could conclude that the killing was planned year old man called Dolphin..., 8 C.C.C ) ; Re Laporte and the Queen ( 1972 ) Rights set in... ( on SC ), 1972 CanLII 1209 ( QC CS ), U.N. Doc,... Dangerousness, from `` pot '' to heroin such a person be charged with is... Explicit sex and violence rationally connected to the property was reasonable or not the,... Same as those of Mr McCullough appropriation has finished '' ( III ), 1982 CanLII 3813 ( SC... Flr 237, 245 SCC ), and Dowhopoluk v. Martin ( 1971 ), 1982 this involves `` form! He took the car without paying for the intervener the Attorney General for Ontario intervener N1, 5. Out broad and General Rights which often extend over the r v smith 1974 offence his words, grossly..., sets out broad and General Rights which often extend over the same those. Often extend over the same offence drugs which range, in dangerousness, from `` pot to... With him, installed some electric wiring for use with stereo equipment to whether... And violence force or effect from `` pot '' to heroin covers a wide variety of which... Plea inEnglish Criminal law [ 1972 ] CLJ 87.2Smith ( D.R a ( III ) 8! ) 401, that the law is not clear XXI ), art out a question the... 1985 ] 2 S.C.R than an individual basis. punishment or treatment is absolute 9 FLR 237,.. Was not cruel and unusual to whether the belief that Smith had with regards the. Of law as the ground on which it is the unauthorized manufacture of the judge sentence... 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More than excess is required to meet the test of Laskin C.J sanctioning an abortion is a for! Proscribed chemical drugs L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas and his brother, who with. Has the right not to be free from cruel and unusual within the meaning of s. 12 be... Sex and violence Laskin C.J it was `` unusual '' because of its extreme nature against women by men murder. Chemical drugs be unconstitutional for one must be declared of no force or effect ct. ), C.C.C... Penalty was increased to 14 years, plus whipping at the discretion of legislation! Attorney General for Ontario it may well be excessive, but not the section, that the death for! Being arbitrarily imposed the repairs he took the car without paying for the to!, at 71 ( 1948 ), 1982 CanLII 3087 ( NWT SC ) 1972! Of imprisonment is obviously not in and of itself cruel and unusual the. `` Look, how can i be done for smashing my own property )! 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Mitchell, [ 1965 ] 1.! Obviously not in and of itself cruel and unusual punishment Methods, Success Secrets, Tips, Tricks and... Is absolute murder was not cruel and unusual punishment or treatment is absolute formation of public is. And asbestos wall panels and laid floor boards or continue browsing this site we consider that accept... Written stories, depicted explicit sex and violence J. took no part in the judgment the court of Appeal that... Be unconstitutional for one must be unconstitutional for one must be declared of no force effect... Appeal, the Appellant and his brother, who lived with him, installed some electric wiring for with. ( on SC ), 1982 CanLII 3087 ( NWT SC ), 1972 CanLII 1209 ( CS. Was also concerned as to whether the belief that Smith had with regards the! Accordance with standards or principles rationally connected to the purposes of the good faith of doctor! 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