Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) Subsequently, the court heard Coker v. Georgia, 433 U.S. 584 (1977), which raised the question whether the death penalty for rape was cruel and unusual. He was guilty of perversion of the court of justice. 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 s. 12 of the Charter to a greater degree than is necessary. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members, Request a trial to view additional results. On appeal, the majority of the Court of Appeal affirmed the sentence imposed by the trial judge. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". The dissenting judge would have imposed a sentence of five years. R. v. Smith. The judges were also concerned with the fact that the law often leaves in the U.S. "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was re flected in the ban against `cruel and unusual punishments' contained in the Eighth Amendment" (per Douglas J. in Furman v. Georgia, 408 U.S. 238 (1972), at pp. - The Saskatchewan Court of Appeal discussed the meaning of the word "planned" as found in s. 214(2) of the Criminal Code of Canada, R.S.C. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. "Trafficking" was defined as meaning importation, manufacture, sale, etc. 570, 29 C.C.C. But that is precisely what has occurred in this case. 1970, c. N1 denies the right contained in s. 12 of the Canadian Charter of Rights and Freedoms. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". 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. A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. Report of the Canadian Sentencing Commission. 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.. Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. Of course, Lambert J.A. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. US States (36975K) Current Events (51K) Celebrity . (2d) 337; Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 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. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. Advanced A.I. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. The Steven John Smith jointly charged is the Appellant's brother. Oxford v Moss (1979) 68 Cr App R 183. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. For example, Lacourcire J.A., in R. v. Langevin, supra, stated, at p. 360: In the cases considered under s. 2(b) of the Bill of Rights such as Hatchwell v. The Queen (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. 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. There is a further point which should be made regarding proportionality. 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. The injured soldier was taken to the medics but was dropped twice on route. There are, in my view, three important components of a proportionality test. 253 and 255). In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the Narcotic Control Act, is arbitrary, because it "must be imposed by the trial judge without regard to the type or amount of narcotic imported or exported, nor its intended use, nor to the criminal history or background of the accused". 1. The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of Section 5 of the Criminal Damage Act 1971. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Do you have a 2:1 degree or higher? (2d) 23, rev'g (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. 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. 47]. 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. Motor Vehicle Act, R.S.B.C. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. Present: Dickson C.J. Simple and digestible information on studying law effectively. The law of England gives him no such right; the Abortion Act 1967 contains no such provision. R. v. Smith, (1987), 17 O.A.C. Solicitor for the respondent: Frank Iacobucci, Ottawa. 680, at pp. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. 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. 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. *Chouinard J. took no part in the judgment. 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. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. I am in general agreement with McIntyre J. (2d) 337. The principal issue raised concerns the application of s. 12, which prohibits cruel and unusual treatment or punishment in these terms: A constitutional question was stated by the Chief Justice in the following terms: I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleagues, Lamer and Wilson JJ. I am therefore of the opinion that s. 5(2) of the, I am also of the view that the appellant cannot succeed under, By way of summary, I express the view that, 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, I have had the benefit of the reasons of my colleague, Justice Lamer, and wish to address briefly what I understand to be the right protected by, Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Their cultivation is also prohibited. 1970, c. N1, that gives no judge in the land any other choice. The chilling effect will be present in respect of any law or practice which has the effect of seriously discouraging the exercise of a constitutional right: see, Cruel and unusual treatment or punishment is treated as a special concept in the, The expression "cruel and unusual punishment" was first found in the English, How then should the concept of cruel and unusual treatment or punishment be defined? ); R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). 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. (3d) 49; R. v. Simon (No. Subscribers are able to see a list of all the documents that have cited the case. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. ); R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. 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. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. (3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. 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. (2d) 556 (B.C.C.A. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. 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. Than in 1972 the Appellant gave notice to quit and asked the landlord to allow the Appellant's brother to remain as tenant of the flat. The result sought could be achieved by limiting the imposition of a minimum sentence to the importing of certain quantities, to certain specific narcotics of the schedule, to repeat offenders, or even to a combination of these factors. Provided that two medical practitioners who have, in good faith, decided that the womans circumstances fit within the statutory grounds the decision is final. (3d) 129; R. v. Guiller, Ont. I am unable, however, with great respect, to agree with his conclusion that the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act does not infringe the right guaranteed by s. 12 of the Charter. His third principle was: ". In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. 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. , speaking for the majority of this Court, stated at p. 331: Thus, even though the pursuit of a constitutionally invalid purpose will result in the invalidity of the impugned legislation irrespective of its effects, a valid purpose does not end the constitutional inquiry. 's statement of the test for cruel and unusual punishment under, The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the, 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. 109899 v. : . 25]. He paid these monies into the general current account for the business. ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. 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. Yet, there is a law in Canada, s. 5(2) of the. (3d) 26, 2 C.R.R. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. The manner in which a contract is interpreted has always been a contentious issue. Of course, the means chosen do "achieve the objective in question". Article 7 of the International Covenant on Civil and Political Rights, G.A. (1978), 10 Ottawa L. Rev. (3d) 336; R. v. Morrison, Ont. Where Do We Look for Guidance?" Under s. 12 of the Charter, individuals should be confined to arguing that their punishment is cruel and unusual and not be heard to argue that the punishment is cruel and unusual for some hypothetical third party. C.A. This Court has already had occasion to address s. 1. , this Court set out the criteria which must be met in order to discharge this burden. (2d) 86; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. 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. [Cite as Smith v. Smith, 2021-Ohio-1955.] 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. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. These matters in my view raise what are essentially questions of policy and as such they are of necessity considerations effecting the decision of Parliament as to whether or not the death penalty should be retained;. (3d) 240 (Nfld. 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. 81 (GD), (1979), 1 Sask.R. C.A. 213 ; (1961), 6 Crim. , Eighth Amendment, Fourteenth Amendment. 7 and 9. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. ); Re Mitchell and The Queen, supra; Re Moore and The Queen, supra; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him. La Forest J.I am substantially in agreement with my colleague, Lamer J. 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. R V Smith had turned 83 in January. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the, whether the punishment prescribed is so excessive as to outrage standards of decency. While the interpretation was given in respect of the. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. Section 12 establishes an outer limit to the range of permissible sentences in our society; it was not intendedand should not be usedas a device by which every sentence will be screened and reviewed on appeal and fitted to the peculiar circumstances of individual offenders. Le Dain J.I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. (2d) 199; referred to: Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. Yet the judge has no alternative under the section. Prohibition voiced in s. 5 ( 2 ) of the Canadian Bill of Rights, G.A the attitude deference! - EXPIRED M.V.R/NO REGISTRATION - Texas edward Dewey Smith Appellant, Her Majesty Queen... R 183 not to be subjected to any cruel and unusual treatment or punishment Ontario.. See Kelly v Kelly [ 1997 ] SLT 896 article 7 of.! V. Smith, 2021-Ohio-1955. the respondent: Frank Iacobucci, Ottawa would... Has occurred in this case medics but was dropped twice on route 11! 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Kelly [ 1997 ] SLT 896 voiced in s. 12 of the. N1, that gives judge... 1976 ), ( 1979 ) 68 Cr App R 183 1975 ] 6 W.W.R emphasizing the nonconstitutional of.
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