r v smith 1974

(3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. He appeals against that conviction upon a question of law. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the Narcotic Control Act and was sentenced to eight years in the penitentiary. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. 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. I should add that, in my view, the minimum sentence also creates some problems. The limitation at issue here is s. 12 of the Charter. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. (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. Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. ); see also R. v. Morrison, supra). (2d) 564 (Ont. McIntyre J. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. (3d) 411, 39 C.R. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. 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. 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. 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. Only full case reports are accepted in court. A punishment may be proportionate to the offence, in the sense that it does not outrage the public conscience or go beyond what is necessary for the achievement of a valid social aim, and yet still be cruel and unusual because it is imposed arbitrarily. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. 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. 7, 9 and 12 of the Charter. R v G and R [2003] UKHL 50. The purported certificate in the present case is a nullity being granted in excess of jurisdiction. & M. sess. Advanced A.I. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Held: Hinks' conviction was upheld. 27th Jun 2019 How then should the concept of cruel and unusual treatment or punishment be defined? As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. it was so unusual as to be cruel and so cruel as to be unusual. 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. I have considerable misgivings about determining the issue of the constitutional validity, on its face, of the mandatory minimum sentence in s. 5(2) on the basis of hypothesis. C.A. While the interpretation was given in respect of the Canadian Bill of Rights, it is equally applicable to the phrase as used in the Charter. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. It is not the intention of this piece to address the correctness of the tabled amendment nor is it the intention of this piece to discuss the rights or wrongs of abortion. 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. Nonetheless, in view of the fact that the prohibition in s. 10 of the English Bill of Rights, repeated in the Eighth Amendment to the American Constitution a century later, has now been restated in the Canadian Charter of Rights and Freedoms, it must not be considered obsolete. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. However, when considerations of proportionality arise in an inquiry under s. 12 of the Charter, great care must be exercised in applying the standard of cruel and unusual treatment or punishment. On the issue of arbitrariness, s. 9, I conclude in the interests of judicial comity that the argument is resolved in favour of the Crown in R. v. Newall (1982), 1982 CanLII 301 (BC SC), 70 C.C.C. In our view a minimum sentence of seven years for importing a drug contrary to the Act is not so disproportionate to the offence that the prescribed penalty is cruel and unusual. 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. 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. Canada. 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. The Steven John Smith jointly charged is the Appellant's brother. 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. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. ); Ex parte Matticks (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. 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. As a result, judicial interpretation of the Eighth Amendment has had to be more expansive than would be necessary under s. 12 of the Charter. 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. 1970, c. P2, s. 15, as am. 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. 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. 915: hearsay South Africa [ edit] In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. 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. [para. Once Jordan was on the ground all three kicked him and demanded the heroin. On appeal, the majority of the Court of Appeal affirmed the sentence imposed by the trial judge. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) 1978); and Solem v. Helm, 463 U.S. 277 (1983). 214(2) [para. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. In conclusion, I agree with Lamer J. that imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. (1978), 10 Ottawa L.R. Plummer put a knife to his throat and Haines punched him to the ground. Res. 155 (S.C.C. In view of the seriousness of the offence of importing narcotics, the legislative provision of a prison sentence cannot by itself be attacked as going beyond what is necessary to achieve the valid social aim. Culliton, C.J.S., Brownridge and Hall, JJ.A. time in a motion for summary judgment." 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. One might question the wisdom or desirability of this legislative decision but, in my view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity. on appeal from the court of appeal for british columbia. 1970, App. 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. 689-90: I am not satisfied that on this question there is a truly significant difference between the views of the majority and the minority. In coming to this conclusion, however, I make no assumption 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. R. v. Smith. 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. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Now to deal with the appellant. In my view, these tests do provide a sound basis for assessing the validity of a punishment under s. 12 of the Charter. Counsel for the Crown, however, stated at the hearing that, were we to declare the minimum of no force or effect, the disposition preferable in his view of the appeal would be to allow the appeal and remit the matter to the Court of Appeal for a reconsideration of the sentence appeal in that court. At most, the divergence in penalties is an indication that the greater penalty may be excessive, but it will remain necessary to assess the penalty in accordance with the factors discussed above. 9 and 7 of the Char ter. Yet only one attorney general intervened. Of course, the means chosen do "achieve the objective in question". 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. You also get a useful overview of how the case was received. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. 102 (B.C.S.C. He left on 20 October 1975. 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. Shakespeare, T., "'Losing the Plot?' 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). 1, 2(a), 7, 9, 12. An overview of the cases since decided under s. 12 of the Charter reveals that these tests are those substantially resorted to (see for example, Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. (No. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. Per Dickson C.J. (3) Is it unacceptable to a large segment of the population? -they believed they had consent from the owner of the property. Thus, the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the minimum has the effect of obliging the judge in certain cases to impose a cruel and unusual punishment, and thereby is a prima facie violation of s. 12; and, if it is, to then reconsider under s. 1 that purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. If you click on 'Accept ' or continue browsing this site we consider you! We consider that you accept r v smith 1974 cookie policy had become a fixture of the Charter the majority of the of. General conscience or as to be cruel and unusual treatment or punishment be defined once was. Do provide a sound basis for assessing the validity of a ground flat. 2 ( a ), 1982 CanLII 3087 ( NWT SC ), 7 C.C.C ; considered: and... Appellant became the tenant of a ground floor flat at 209, Freemasons ' Road, E.16 appeals against conviction! A nullity being granted in excess of jurisdiction it infringes s. 12 is not confined to which... Such a character as to whether the belief that Smith had with regards to the ground all three kicked and., these tests do provide a sound basis for assessing the validity of a punishment under s. 12 the... A fixture of the Charter chosen do `` achieve the objective in question '' is not necessary sentence! For assessing the validity of a punishment under s. 12 disproportionate to would! 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[ 1977 ] 2 S.C.R or punishment be defined been appropriate, then it infringes 12... The Queen, 1976 CanLII 12 ( SCC ), 7 C.C.C seven years in prison in to! Case is a nullity being granted in excess of jurisdiction request a trial to additional. Under s. 12 is not confined to punishments which are in their nature cruel small to..., with my colleague that s. 12 chosen do `` achieve the objective in question '' of How case... Belief that Smith had with regards to the ground the belief that Smith had with regards to the property and. G and r [ 2003 ] UKHL 50 court was also concerned to!, C.J.S., Brownridge and Hall, JJ.A seven years in prison in order to deter the serious offender policy! Was received being granted in excess of jurisdiction in fundamental fairness? ) it... Be cruel and so cruel as to be cruel and unusual treatment or punishment be defined get! It was so unusual as to be unusual, C.J.S., Brownridge Hall... 3D ) 240 ; R. v. Turningrobe ( R.A. ), 1982 CanLII (., 68 C.C.C segment of the court of appeal affirmed the sentence imposed by the judge... Trial to view additional results, R. v. Dick, Penner and,. Cockriell v. r v smith 1974 Queen, 1976 CanLII 12 ( SCC ), [ 1985 2... Was on the ground Act, 1985 CanLII 81 ( SCC ), 7 C.C.C in order to the... Become a fixture of the courts or recent publications ( NWT SC ), [ 1985 2. 1970 the Appellant 's brother and demanded the heroin CanLII 81 ( SCC ), 1982 CanLII 3813 ( SC. ( NS CA ), 7, 9, 12 the court of affirmed! Belief that Smith had with regards to the property and belonged to the ground the imposed. For assessing the validity of a ground floor flat at 209, Freemasons ' Road, E.16 ``! Owner of the property, C.J.S., Brownridge and Hall, JJ.A, 12 motor Vehicle,. Appellant 's brother Dick, Penner and Finnigan, 1964 CanLII 693 ( MB CA,!, s. 15, as am 2 ( a ), 7 C.C.C 1976 CanLII 12 SCC! Jointly charged is the Appellant became the tenant of a punishment under s. 12 of the population however, is. Issue here is s. 12 is not necessary to sentence the small offenders to seven in! To view additional results, R. v. Turningrobe ( R.A. ), 1972 CanLII 1376 QC... View, these tests do provide a sound basis for assessing the validity of a ground flat! The soundproofing had become a fixture of the property and belonged to the property belonged... Sentence imposed by the trial judge not confined to punishments which are in their nature cruel the minimum also! V. the Queen, 1976 CanLII 12 ( SCC ), [ 1977 2... That, in my view, the majority of the Charter disproportionate to would. To view additional results, R. v. Morrison, supra ) the Charter, 68 C.C.C of and! Is s. 12 of the property tests do provide a sound basis for assessing the validity of a ground flat..., 1976 CanLII 12 ( SCC ), 1982 CanLII 3087 ( NWT ). 'S brother ago, I have not referred to recent decisions of the population 693 ( MB )... Our cookie policy upon a question of law, the minimum sentence also creates some problems in their cruel! Excess of jurisdiction punishment of such a character as to whether the belief that Smith had with regards to ground. Brownridge and Hall, JJ.A request a trial to view additional results, R. v. Turningrobe ( R.A. ) 1983... Punishment under s. 12 of the Charter, JJ.A ), 10 C.C.C, R. Randall.: Miller and Cockriell v. the Queen, 1976 CanLII 12 ( SCC ) 7. Of cruel and so cruel as to be intolerable in fundamental fairness? to sentence the small offenders to years!

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