Clearly there is no need to be indiscriminate. 1952, c. 201, s. 4. Facts: A travel agent received money from clients for deposits for their holidays. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. This might not be so if the legislatively prescribed minimum was, for example, six months or a year because, although this might be arbitrary, it arguably would not be "so excessive as to outrage standards of decency". R v. Smith (1974) 58 Cr. 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. Solicitors for the appellant: Serka & Shelling, Vancouver. Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the Narcotic Control Act was prima facie inconsistent with the rights guaranteed by that section. [Emphasis added.]. 10. 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. (3d) 233, also a decision of the British Columbia Court of Appeal. Facts: The defendant took his car in to a service station for repairs. 680. H.C.), at p. 311; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. 152, refd to. A/6316 (1966) is also worthy of note. This was not accepted by the trial judge and Smith appealed the decision. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. It cannot be said that the Charter sought to effect that purpose by giving an absolute discretion in the matter to the courts. She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law. 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. ), at p. 53). J. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches s. 12 of the Charter and this breach has not been justified under s. 1. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. VLEX uses login cookies to provide you with a better browsing experience. A good starting point in considering the American experience is, First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them, The principles developed in the United States under the Eighth Amendment, while of course not binding on this Court, are helpful in understanding and applying the prohibition against cruel and unusual punishment contained in, These same standards were expressly adopted by Heald J. in, Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. No discretion to any sentencing authority is permitted, no exception to its application is provided. 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 Where do we Look for Guidance?" 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. 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. In my view, the fight against the importing and trafficking of hard drugs is, without a doubt, an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom". A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. The second criterionproportionality of the means chosenwas not met. 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. 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. The facts of the case are sufficiently set out in the reasons of Lamer J. and I will not repeat them. I also agree with him that a punishment which is found to be cruel and unusual could not be justified under s. 1 of the Charter. Judicial discretion to impose a shorter sentence if circumstances warrant is foreclosed and the inevitable result is a legislatively ordained grossly disproportionate sentence in some cases. 9. Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. To take but a few examples, theft of property over $1,000 may be punished by imprisonment for l0 years (s. 294); robbery may be punished by life imprisonment (s. 303); breaking and entering a dwellinghouse with intent to commit an offence may be punished by life imprisonment (s. 306); forgery may be punished by 14 years' imprisonment (s. 325); fraudulent personation may be punished by 14 years' imprisonment (s. 361); manslaughter may be punished by life imprisonment (s. 219); and, finally, trafficking in narcotics may be punished by life imprisonment (s. 4 of the Narcotic Control Act). Held: The appeal was dismissed and the convictions were upheld. 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. ), pp. Is it in accord with public standards of decency or propriety? ) ), refd to. "Look, how can I be done for smashing my own property. Held: At first instance the defendant was convicted of theft. In so doing, the courts will apply the general principles of sentencing accepted in the courts in an effort to make the punishment fit the crime and the individual criminal. The only decision finding a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. 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. You also get a useful overview of how the case was received. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. The Court of Appeal for Ontario ((1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Motor Vehicle Act, supra). Subscribers are able to see any amendments made to the case. 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. It is conceded that seven years' imprisonment would not be cruel and unusual punishment for many, if not most, conceivable cases of unauthorized importing or exporting of a narcotic. The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. The couple did not engage in vaginal penetrative sex. A punishment failing to have these attributes would surely be cruel and unusual. [para. R. v. Smith (No. in his concurring, minority judgment in Miller and Cockriell. The act of appropriation does not cease. Extract. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. Unsurprisingly the European Commission described his claim as manifestly ill-founded and dismissed his claim, finding that his estranged wifes right to respect for her private and family life prevailed. In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose [p. 331]. Though the passage from his judgment is lengthy, I reproduce it hereunder in full: "An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes", 1908 (Can. (2d) 86; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. 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. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. Their cultivation is also prohibited. ); see also R. v. Morrison, supra). 484, refd to. (3d) 1; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. It becomes clear, then, that while the barbarous punishments of the past which called into being the prohibition of some three centuries ago are mercifully unlikely to recur, the prohibition is saved from any suggestion of obsolescence by the addition of the word "treatment". This introduction of arbitrariness for the precise purpose of ensuring equality under the law, however appropriate in the United States, should not simply be transplanted into the Canadian context where the criminal law power is within the competence of the federal government and thus uniform throughout the country. 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. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) 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. 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. His funeral service took place at the Burari Christian cemetery on Thursday afternoon . (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". 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. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? 1970, c. C-34 - See paragraphs 23 to 27. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. MR. L. GERBER appeared on behalf of the Crown. The assessment of alternative punishments cannot, of course, be carried out with precision, since our knowledge of the efficacy of any punishment is at best rudimentary. Per Dickson C.J. 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. 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; Added to that potential is the, The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. ); Re Mitchell and The Queen, supra; Re Moore and The Queen, supra; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Cruel and unusual treatment or punishment is treated as a special concept in the Charter. I agree with my colleague's proposed disposition of the appeal. Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(b). 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. 1979, c. 288. These criteria are very usefully synthesized in an article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel and Unusual Treatment or Punishment? 16) 52, U.N. Doc A/6316 (1966), art. While the interpretation was given in respect of 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 s. 12 of the Charter, and hence beyond the power of Parliament. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. In any event, Lambert J.A. But on 1 March 1976 a woman [Mrs Smith] was appointed to be manageress of the stockroom.. Subscribers are able to see any amendments made to the case. 1970, c. N1 denies the right contained in s. 12 of the Canadian Charter of Rights and Freedoms. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. If there be a rational reason for the policy then I do not think it is for a judge to say that the policy is capricious, unreasonable or unjustified. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. The formation of public policy is a function of Parliament. 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. 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. 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. 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. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. (a)authorize or effect the arbitrary detention, imprisonment or exile of any person; (b)impose or authorize the imposition of cruel and unusual treatment or punishment; Sections 7, 9 and 12 of the Charter guarantee the following rights: 7. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 1979, c. 288, on those found guilty of driving their vehicle while knowing that their licence was suspended, was not inconsistent with ss. 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". 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 Narcotic Control Act is to be tested, in the light of s. 12 of the Charter, against the general seriousness of the offence created by s. 5(1) or against the relative seriousness of the whole range of the conduct to which the offence could conceivably apply. R. v. Mitchell, 43 C.R. 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