r v smith 1974

486. But the wording of the section and the schedule is much broader. 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. Trafficking in any of them is a serious offence. 1, (1975), 24 C.C.C. 10. . 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. 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. 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. Facts: The defendant stole bags outside charity shops that had been donated. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. I should add that, in my view, the minimum sentence also creates some problems. 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: see Miller and Cockriell, supra; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. (2d) 564 (Ont. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. Section 9 provides, as follows: "Everyone has the right not to be arbitrarily detained or imprisoned." Motor Vehicle Act, R.S.B.C. Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. (3d) 26, 2 C.R.R. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. time in a motion for summary judgment." I am substantially in agreement with my colleague, Lamer J. 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). Take a look at some weird laws from around the world! The defendant did not tell the manager the cheques were stolen and he had not checked with the bank as he was instructed to do. The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. 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. r v smith (john) [1974] 1 all er 376 r v bourne [1938] 3 all er 615 r v d [1984] 3 wlr 186 r v reid [1972] 2 all er 1350 r v timmins [1858-61] 8 cox cc 401 r v robins [1884] 174 er 890 r v white [1871] lr 1 ccr; 12 cox cc 83 queen v papadimitropulous kaitamakyi v r r v flattery r v linekar r v marsden r v pressy alawusa v odusote bolduc & . (3d) 306 (Ont. 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. o R v Ruffell 2003- V injected heroin and became ill. 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. The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. 4 (Ont. R. v. Reynolds, 44 C.C.C. It is because of that certainty that I find that the minimum mandatory imprisonment found in s. 5(2) is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees to each and every one of us that we shall not be subjected to any cruel and unusual treatment or punishment. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. 152, refd to. 2.I or your money backCheck out our premium contract notes! (2d) 23 (Ont. Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. 7, 9 and 12 thereof? It is the fact that the sevenyear sentence must be imposed regardless of the circumstances of the offence or the circumstances of the offender that results in its being grossly disproportionate in some cases and therefore cruel and unusual in those particular cases. Advanced A.I. As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. However, the sevenyear minimum prison term of s. 5(2) is grossly disproportionate when examined in light of the wide net cast by s. 5(1). For example, s. 12 would not be infringed if a judge, after having refused to hear any submissions on sentencing, indicated that he would not take into consideration any relevant factors, but then went on to impose arbitrarily a preconceived but appropriate sentence. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. Smith was the tenant of a ground floor flat. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. 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. It shocked the communal conscience. 25]. He nevertheless imposed an eightyear sentence. C.A. I merely note that there exists a field for the exercise of s. 12 scrutiny in modern penal practice. Res. Criminal Code of Canada, R.S.C. 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. At the conclusion of the trial the Deputy Circuit Judge purported to grant a certificate under, section 1(2) of the Criminal Appeal Act 1968, 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, It seems to me that the law is not clear.". A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics: (1)The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2)The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or. 7, 9 and 12 thereof? (3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. ), On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to. 680, was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) 9. 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; 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. In the later case of Gregg v. Georgia, 428 U.S. 153 (1976), the court considered a Georgia statute which had been specifically amended to conform with the majority opinions in Furman. Canada. 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. Solicitor for the intervener: Attorney General for Ontario, Toronto. Planned 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. See also . 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. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 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. 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. 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. Of course, the means chosen do "achieve the objective in question". 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. 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. 1, 2(a), 7, 9, 12. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. 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. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Summary: This case arose out of a charge of first degree murder. Later, in Solem v. Helm, supra, any question of whether the concept of cruel and unusual punishment could be extended to include excessive sentences, as well as barbaric ones, was set at rest. 102 (B.C.S.C. There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or, A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 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