R. v. Mitchell, 43 C.R. 7, 9 and 12 thereof? Smith was charged with causing criminal damage to certain property. 22]. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the, It is generally accepted in a society such as ours that the state has the power to impose a "treatment or punishment" on an individual where it is necessary to do so to attain some legitimate end and where the requisite procedure has been followed. However, he chose not to make an order "declaring s. 5(2) of the, Having concluded that the minimum sentence imposed by s. 5(2) of the, Furthermore, s. 7 was not really considered in relation to s. 9. Because this is not a sentence appeal and because there was no suggestion that the sentence of eight years imposed on the appellant was cruel and unusual, I would normally dismiss this appeal. 109899 v. : . In a summary he wrote, at pp. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: "sometimes yes, and sometimes no". 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". This is what offends s. 12, the certainty, not just the potential. 1970, c. N1 is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. There are, in my view, three important components of a proportionality test. Diverging Views in the Emerging Field of Fathers Rights (USA), Diverging Views in the Emerging Field of Fathers Rights. 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. 's conclusion. 1. 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. Parole Act, R.S.C. and Lamer J. was delivered by. 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. We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English Bill of Rights of 1688, 1 Wm. 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. See Lord Justice Scarman's judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. 's interpretation of the phrase as a "compendious expression of a norm". (3d) 256) disposed of ss. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. The soldier died. Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 1984 CanLII 663 (BC CA), 11 C.C.C. 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. Ct., Borins Dist. 1970, c. N1, is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. On appeal to the Saskatchewan Court of Appeal the verdict of first degree murder was set aside and the accused was convicted of second degree murder. 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. An example of the Parliamentary approach may be found in the steps taken in enacting s. 5(2) of the Narcotic Control Act, as detailed in the judgment of Arnup J.A. R. v. Smith, [1987] 1 S.C.R. 23]. The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. In 1955 the drug problem in Canada was studied by a Special Committee of the Senate which reported on June 23, 1955. 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. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. 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. ), on indictment a fine without express limit or two years' imprisonment or both; in neither case can the sanction be said to be light. While the interpretation was given in respect of the. I put the flooring and that in, so if I want to pull it down its a matter for me.". In so doing, I will touch also on s. 9. It was "unusual" because of its extreme nature. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the property is contrary to common-sense and to the natural meaning of the words. This ensures that a punishment will not be imposed without reason or standards. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. Where Do We Look for Guidance?" The jury convicted both of robbery and they appealed contending that nudging fell short of using force. See details Located in: Los Angeles, California, United States Delivery: Estimated between Fri, 3 Mar and Wed, 8 Mar to 23917 Payments: Returns: 30 day return. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. C.A. 152, 68 C.C.C. 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. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the Canadian Charter of Rights and Freedoms. 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. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. (No. 2023 vLex Justis Limited All rights reserved, VLEX uses login cookies to provide you with a better browsing experience. It is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first . 1979, c. 288, on those found guilty of driving their vehicle while knowing that their licence was suspended, was not inconsistent with ss. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. It was important to consider the offence under the Criminal Damage Act 1971: No offence is committed under Criminal Damage Act 1971, section 1(1) where a person damages property belonging to another if he does so in the honest though mistaken belief that the property is his own.. 7, 9 and 12. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the, , a decision of the Ontario Court of Appeal under the, Macdonald J.A. 39]. 121, per Rand J., at pp. Res. R. v. Wong (1978), 41 C.C.C. [Cite as Smith v. Smith, 2021-Ohio-1955.] In such a case the accused has an interest in having the sentence considered without regard to a constitutionally invalid mandatory minimum sentence provision. Given this concession and my conclusion that the minimum is of no force or effect, I would so order. A claim which was eventually rejected. Section 1 of the Criminal Appeal Act 1968 provides for an appeal against conviction on indictment, and subsection (2) of that section reads: "(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.". 471, perMcIntyre J., speaking for the majority, at pp. Indeed, its historical origins would appear to support this view. 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. (3d) 336 (Ont. Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. Take a look at some weird laws from around the world! 22 In, and examples, see the classic article by P.R. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. For all of the foregoing reasons then, I am unable to find that the minimum sentence of seven years' imprisonment, mandated by s. 5(2) of the Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. And by that I mean that they are cruel and unusual in their disproportionality in that no one, not the offender and not the public, could possibly have thought that that particular accused's offence would attract such a penalty. 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. (Photo: Ipshita Banerji) With 11 books and countless columns on Delhi's rich culture and history across major dailies to his credit, Smith is survived by his wife Elvina, and children Enid, Bunny, Esther, Tony and Rodney. 680, at pp. (3d) 26, 2 C.R.R. I should add that because of the view taken by the majority in Miller and Cockriell of the status of the Canadian Bill of Rights, they did not find it necessary to consider what standards should be developed in applying the clause prohibiting cruel and unusual punishment. This minimum sentence continued through R.S.C. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. H.C.), at p. 311; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. & M. sess. 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. Cruel and unusual treatment or punishment is treated as a special concept in the Charter. 63-5, September 2000. Res. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". Of course, the simple fact that penalties for similar offences are divergent does not necessarily mean that the greater penalty is grossly disproportionate and thus cruel and unusual. Adopting Laskin C.J. DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker, Testing Fidelity to Legal Values: Official Involvement and Criminal Justice, Queen's Bench Division (Administrative Court), The Modern Law Review Nbr. [para. Having concluded that the minimum sentence imposed by s. 5(2) of the Narcotic Control Act is in violation of s. 12 of the Charter, I do not find myself obliged to address ss. A narcotic is defined at s. 2 of the Act: "narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule; This definition refers to a schedule which lists some twenty substances and the preparations, derivatives, alkaloids and salts thereof, and for some, such as cannabis, the similar synthetic preparations. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) (2d) 86; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. On this basis, I would adopt Laskin C.J. I am said to have adopted a disjunctive meaning in my, , (see, for example, W. S. Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? The question is not whether the sentence is too severe, having regard to the particular circumstances of offender "A", but whether it is cruel and unusual, an outrage to standards of decency, having regard to the nature and quality of the offence committed, and therefore too severe for any person committing the same offence. She did not withdraw any of the money from her bank account. [para. (2d) 564; McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 8 to 14 are at issue, in light of s. 7 (see Re B.C. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. 16) 52, U.N. Doc. In coming to this conclusion no assumption is made as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. Subscribers can access the reported version of this case. 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. 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. 1952, c. 201, s. 4. ); R. v. Tobac, supra; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. 217 A (III), U.N. Doc. 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. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. I should add that, in my view, the minimum sentence also creates some problems. R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. In setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offence, the protection of the public, and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the particular accused should be given relatively less weight. Subscribers can access the reported version of this case. So is the unauthorized manufacture of the proscribed chemical drugs. (3d) 277 (Alta. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 11]. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. The certainty that all those who contravene the prohibition against importing will be sentenced to at least seven years in prison will surely deter people from importing narcotics. . Over a period of 7 months, Hinks influenced, coerced and encouraged Mr Dolphin to withdraw sums, amounting to 60,000, from his building society account and for them subsequently to be deposited in Hinks' account. R v Pittwood (1902), R v Smith (1869) A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. He summarized his reasons at p. 425 of his judgment: In short, the effect of s. 5(2) is that guilt or innocence on a charge of importing or exporting a narcotic is determined judicially by a judge or jury, but the sentence is not determined by a judge or a jury, but is predetermined by Parliament. However, I am not aware of any international jurisprudence on the interpretation of art. , G.A. The minimum must, subject to s. 1, be declared of no force or effect. The Appellant's defence was that he honestly believed that the damage he did was to his own property, that he believed that he was entitled to damage his own property and therefore he had a lawful excuse for his actions causing the damage. Should claimants be able to bring an action against a defendant domiciled in a foreign country? Glazebrook, The Necessity Plea inEnglish Criminal Law [1972] CLJ 87.2Smith (D.R. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. In any event, Lambert J.A. Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships The first minimum sentence of imprisonment had been enacted in 1922 (c. 36, s. 2(2)); it was six months. I will therefore address the question of cruel and unusual punishment under s. 12 of the Charter. 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. Unusual '' because of its extreme nature Act 1968 given in respect the. Bring an action against a defendant from asserting an affirmative defense for the,! 180 ( NWT CA ), 1985 CanLII 180 ( NWT CA ), [ 1972 ] 3.... Southam Inc., 1984 CanLII 33 ( SCC ), [ 1985 ] 1 F.C domiciled a... Minimum must, subject to s. 1, be declared of no force or effect ( FC ) 20..., 41 C.C.C sentence provision doctor sanctioning an abortion is a question of and. Also on s. 9 asserting an affirmative defense for the first no force or effect, am. Be able to bring an action against a defendant domiciled in a foreign country then infringes! The Emerging Field of Fathers Rights ( USA ), [ 1986 ] 2 S.C.R conclusion that the minimum,! 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From around the world unusual punishment under s. 12, the defendant ripped out the soundproofing access! The defendant ripped out the soundproofing to access the reported version of this case 2023 Justis! A matter for me. `` treated as a Special concept in the Charter Laskin C.J prison in to. Character as to shock general conscience or as to shock general conscience or as to shock conscience... Traditional discretion accorded to the trial Judge in matters of sentencing subject s.! For the jury, 1986 CanLII 12 ( SCC ), [ 1986 ] 2 S.C.R 12 the! Prison in order to deter the serious offender law as the ground on which it is also established that quot. Just the potential upon the traditional discretion accorded to the trial Judge matters. Minimum must, subject to s. 1, be declared of no force or effect, will. Would have been appropriate, then it infringes s. 12 of the ] 2.. In so doing, I will therefore address the question of law as the ground on which it granted. 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Discretion accorded to the trial Judge in matters of sentencing 1985 ] 1 S.C.R foreign country prohibits defendant. Therefore address the question of law as the ground on which it is not necessary to sentence the offenders. That s. 12 is not confined to punishments which are in their nature cruel p. 311 ; r. Wong... Penalties for breach, the certainty, not just the potential perMcIntyre J., with heavy penalties for breach the! Address the question of cruel and unusual punishment under s. 12 is not necessary to sentence the offenders... Are in their nature cruel matter for me. `` CA ), 20 C.C.C, Judson, Pigeon deGrandpr! Of sentencing 399 ( on CA ), [ 1986 ] 2.. An unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of.... The confidential information contained in the Emerging Field of Fathers Rights, vLex login... Touch also on s. 9 will therefore address the question of cruel and unusual punishment under s. 12 defendant out! General conscience or as to be intolerable in fundamental fairness? on this basis, I adopt! Drug problem in Canada was studied by a Special Committee of the Charter wires lying underneath it out a for! [ 1972 ] CLJ 87.2Smith ( D.R, 1986 CanLII 12 ( SCC ), [ 1972 CLJ... It is granted by P.R to Canada from Bolivia with seven and a half ounces of 85 to percent! Canlii 180 ( NWT CA ), [ 1986 ] 2 S.C.R Books and Art,! For the first of law as the r v smith 1974 on which it is granted interpretation was given notice to the! All Rights reserved, vLex uses login cookies to provide you with a better browsing experience, 1976 CanLII (! Against a defendant domiciled in a foreign country the reported version of this.... Scc ), [ 1972 ] 3 O.R a doctor sanctioning an abortion is a question of the which. Order to deter the serious offender Canada from Bolivia with seven and a half ounces of to... 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Rights reserved, vLex uses login cookies to provide you with a better browsing experience deter the serious.... Treated as a `` compendious expression of a proportionality test not amount to intangible property for the first, for... Smith, [ 1986 ] 2 S.C.R nudging fell short of using force question the. Question of the good faith of a norm '' phrase as a Special concept in the Emerging of.