But, as I noted earlier, sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. It was not until fifteen years after the enactment of the Canadian Bill of Rights that a more in depth analysis of the protection afforded by s. 2(b) was undertaken. Some of the tests are clearly aimed at the nature or quality of the punishment, others concern themselves more with the duration of punishment under the heading of proportion ality. He appeals against that conviction upon a question of law. The inclusion of the word "treatment" in the Charter has advanced this broadening process for the nature and quality of treatment or conditions under which a sentence is served are now subject to the proscription. BLOG; CATEGORIES. Sections 9 and 12 are not mutually exclusive. In so doing, I will touch also on s. 9. I would add, in so far as the question of interest or standing discussed by McIntyre J. is concerned, that I am of the opinion that an accused should be recognized as having standing to challenge the constitutional validity of a mandatory minimum sentence, whether or not, as applied to his case, it would result in cruel and unusual punishment. R V Smith had turned 83 in January. o R v Ruffell 2003- V injected heroin and became ill. 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 prosecutorial discretion is then exercised in selecting the appropriate charges. It may test public opinion, review and debate the adequacy of its programs, and make decisions based upon wider considerations, and infinitely more evidence, than can ever be available to a court. 156 (B.C.S.C.). Police v Butler [2003] NSWLC 2. (2d) 564 (Ont. 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. 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. ); R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. ), (see, for example, W. S. Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? 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". It is clear however that at this moment in time the only parties who have any say in whether a termination should or should not be carried out are the two medical practitioners. Of course because we live in a free, democratic and progressive society, cruelty and gross discrepancy of treatment of those we punish has generally, under the rule of law, been kept in check through legislation imposing limitations on what we can do to others under the law and through the development of elaborate sentencing guidelines and review through appeals. We do not provide advice. Craig J.A. 8 to 14 was commented on and where the "principles of fundamental justice" were defined as providing more than just procedural protection under the section. Unsatisfied Mr Paton sought to secure the injunction by arguing that his standing to protect his unborn childs right to life was secured under the right to respect for his private and family life in Paton v United Kingdom [1980] 3 EHRR 408. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Thus, despite the constitutional nature of the Canadian Charter of Rights and Freedoms and the command therein to the courts to oversee the constitutionality of our laws, the approach taken when interpreting laws under the Canadian Bill of Rights, has, to some extent, guided the judiciary when considering a constitutional challenge to laws under the Charter. 783. 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. 11. Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences per se would affect all those laws. Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. As society moves forward it is understandable that fathers rights will be addressed. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. 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. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. 1970, App. 713). Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. (3d) 277; R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. 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. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. ); Ex parte Matticks (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. A sevenyear sentence for drug importation is not. I have considered whether that should not be sufficient to sustain the validity, on its face, of the mandatory minimum sentence of seven years' imprisonment, subject to the power of a court in a particular case to find that the mandatory minimum sentence is constitutionally inapplicable because it would in all the circumstances of the case be cruel and unusual punishment. C.A. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. Not every departure by a court or legislature from what might be called the truly appropriate degree of punishment will constitute cruel and unusual punishment. (3d) 233; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (No. I rather welcome this opportunity as I prefer not to address s. 9, given the proceedings throughout. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. It is not necessary, for reasons discussed above, to answer the question as regards ss. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. 7 and 9. Once there the treatment given was described as palpably wrong. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. *You can also browse our support articles here >. Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. (1978), 10 Ottawa L. Rev. R v Denton [1982] 1 All ER 65, [1982] Crim. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. This page contains a form to search the Supreme Court of Canada case information database. (3d) 336 (Ont. [para. On the next day the Appellant damaged the roofing, wall panels and floorboards he had installed in order according to the Appellant and his brother to gain access to and remove the wiring. ); R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. Ct. 1st Dist. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. (2d) 316; R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) 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. One must also measure the effect of the sentence actually imposed. While the interpretation was given in respect of the. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. (2d) 158 (B.C.S.C. In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence. 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. But the wording of the section and the schedule is much broader. 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. (2d) 158; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? Furthermore, s. 7 was not really considered in relation to s. 9. A definition which satisfies this requirement and fits modern conditions is again supplied by Laskin C.J. Februar 1975 [3] R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472 R v Smith (Percy) [1976] Crim LR 511, DC 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. C.A. If that prohibition is not confined within definite limits, if it may be invoked by the courts on an individual casebycase basis according to judicial discretion, then what is cruel and unusual in respect of "A", on one occasion, may become acceptable in respect of "B" on another occasion. Murder - First degree murder, meaning of "planned and deliberate" - The accused was convicted of first degree murder - The Saskatchewan Court of Appeal set aside the conviction because the killing resulted from a sudden impulse - The Court of Appeal stated that there was no evidence that the killing resulted from a "previously determined design or scheme" - See paragraph 31. (3d) 42 (Ont. & M. sess. Facts: The two defendants broke into a woman's home. 1970, c. C-34 - See paragraphs 23 to 27. H.C.)), In the early years of the Canadian Bill of Rights, in those rare cases where s. 2(b) was the object of some judicial analysis, the application of the prohibition was either limited to the protection against the infliction of excessive and unusual physical pain (R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. (3d) 49; R. v. Simon (No. R. v. Nygaard and Schimmens, [1989] 2 S.C.R. However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. VLEX uses login cookies to provide you with a better browsing experience. (3d) 193 (Ont. A punishment will be cruel and unusual and violate. ) The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. 1970, c. C34, and other penal statutes. 8 to 14 are at issue, in light of s. 7 (see Re B.C. Home US States Texas Smith County, TX Ronnie L Kimes. R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, <, Carmona v. Ward, 576 F at (2d) 405 (not available on CanLII), People v. Broadie, 371 NYS (2d) 471 (not available on CanLII), Regina v. Smith, 35 CR (3d) 256, 11 CRR 283 (not available on CanLII), Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the. They failed to diagnose that his lung had been punctured. Article 7 of the International Covenant on Civil and Political Rights, G.A. 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. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. 25% off till end of Feb! Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. For example, the serious hard drugs dealer who is convicted of importing a large quantity of heroin and the tourist convicted of bringing a "joint" back into the country are treated on the same footing and must both be sentenced to at least seven years in the penitentiary. 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. [para. Ct.); R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. 63]. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here. After observing that the words could not be limited to the savage punishments of the past, he said at p. 688: That is because there are social and moral considerations that enter into the scope and application of s. 2(b). Digestible Notes was created with a simple objective: to make learning simple and accessible. 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. A finding that s. 5(2) of the Narcotic Control Act does not offend s. 12 of the Charter will not deprive the section of scope for application. 3839: The debate between those favouring a restrictive application of the, In that case, all the judges of this Court agreed that capital punishment for murder did not constitute cruel and unusual punishment, but different routes were taken to reach this conclusion. 1970, c. Nl, as amended, infringes ss. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. ), c. 35, was introduced and passed. 8. ", As Lamer J. has indicated at p. 1069 of his judgment, these are the tests which have been generally applied in the cases heard so far under, Dealing with the first test, is the punishment of such character or duration as to outrage the public conscience or be degrading to human dignity? 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. 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. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. Arnup J.A. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the Criminal Code, R.S.C. ), refd to. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. ), refd to. 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. 7 that would be of assistance to us in the present appeal, as most of the cases that have addressed the provision have dealt with the conditions of imprisonment or the type of treatment to which those being detained are subject. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. Heroin and became ill two defendants broke into a woman 's home I noted earlier sentencing. 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