r v smith 1974

Further, after considering the justifications of deterrence and retribution, he concluded at pp. But, as I noted earlier, sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. If the impugned law or practice does not prohibit any individual from engaging in a constitutionally protected activity, there is no basis for allowing parties before the court to invoke the rights of hypothetical third parties in support of their challenge. It was "unusual" because of its extreme nature. Before submissions on sentencing were made the accused challenged the constitutional validity of the sevenyear minimum sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. 129, refd to. 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. Belonging to Another . (2d) 316 (Ont. 5. 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. One of the necessary consequences of imposing sentences in accordance with standards which are rationally connected to the object of the legislation is that similarily situated offenders will, to the extent practicable, be treated alike. 1970-1972, RM-0000, USS Sarsfield (DD-837) Service Years 1968 - 1974 1974 Horne, Alan, MM3 NEC MM-0000-Machinist's Mate Status USN Veteran Primary Unit 1971-1974, MM-0000, USS Spiegel Grove (LSD-32) Service Years 1970 - 1974 1974 Rivera Colon, Angel Rafael, AKAA NEC AK-0000-Aviation Storekeeper Status USN Veteran Primary Unit agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. Motor Vehicle Act, supra; and R. v. Oakes, supra, this Court indicated that once there has been a prima facie violation of the Charter the burden rests upon the authorities to salvage the legislative provision in question. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. The legislative approach is clear and direct. I put the flooring and that in, so if I want to pull it down its a matter for me.". In any event, I find it would be dangerous to approach our "cruel and unusual" punishment section on the rationale of equality and conclude that uniformly applied, through mandatory imposition or otherwise, a sentence could no longer, on the basis of arbitrariness, be considered cruel and unusual. To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. In part this trend has prompted, in part it may have been a result of, legislative change. (2d) 213 (S.C.C. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Clearly there is no need to be indiscriminate. , that the death penalty for murder was not cruel and unusual punishment. 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. In that case, the validity of the very section under review in the case at bar was tested under the Canadian Bill of Rights' prohibition in s. 2(b) against cruel and unusual treatment or punishment. ), p. 790; and Mitchell, supra). 1970, c. N1 denies the right contained in s. 12 of the Canadian Charter of Rights and Freedoms. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. C.A. 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. 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. Res. Study Mens Rea - Intention and Recklessness flashcards from Rhys Brennan's class online, or in Brainscape's iPhone or Android app. Facts: The defendant took his car in to a service station for repairs. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. Such a result reduces the significance of the absolute prohibition in s. 12 of the Charter and does not afford, in my view, an acceptable approach to a constitutional question. It also extends to punishments which are, to use his words, "grossly disproportionate". Provided that two medical practitioners who have, in good faith, decided that the womans circumstances fit within the statutory grounds the decision is final. 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. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. A convicted person has a right of appeal upon questions of law alone. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. (No. 1970, c. C-34 - See paragraphs 23 to 27. It seems to me that the law is not clear. 295, this Court expressly held that a corporation charged with a criminal offence under the Lord's Day Act could argue that the Act violated freedom of religion, under s. 2(a) of the Charter, without also alleging that the statute specifically infringed its religious beliefs. On the facts, it was the accused's grandmother. The husband has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. Parliament, in legislating a minimum sentence, merely concluded that the gravity of the offence alone warranted that sentence. I am said to have adopted a disjunctive meaning in my, , (see, for example, W. S. Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? Sections 9 and 12 are not mutually exclusive. R v Smith (David Raymond) [1974] QB 354, 58 Cr App R 320, [1974] 2 WLR 20, [1974] 1 Alle ER 632, CA R v Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 Alle ER 651, CA (Civ Div) R gegen Smith, nicht gemeldet, 13. However, the potential that such a person be charged with importing is there lurking. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. R v. Smith (1974) 58 Cr. 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. The dissenting judge would have imposed a sentence of five years. The rack and the thumbscrew, the stocks, torture of any kind, unsanitary prison conditions, prolonged periods of solitary confinement were progressively recognized as inhuman and degrading and completely inimical to the rehabilitation of the prisoner who sooner or later was going to have to be released back into the community. There was a legal obligation to return the money received by mistake. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. On the contrary, I believe it is quite fundamental. The Attorney General referred a question to the Court of Appeal. (3d) 277 (Alta. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. This type of national evil requires the opinion of Parliament as to appropriate penalties, not that of individual Judges. We believe that human potential is limitless if you're willing to put in the work. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 1984 CanLII 663 (BC CA), 11 C.C.C. I am said to have adopted a disjunctive meaning in my dissent in Miller and Cockriell v. The Queen, 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. o R v Nicholls 1874- child died after moving in with grandmother. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. An overview of the cases since decided under, and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (, Relying on the guidelines enunciated under the, This deference to Parliament has been repeated in many, It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the, For reasons I will give later I will address only, Importing has been judicially defined as fol lows, Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the. 1970, App. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. I rather welcome this opportunity as I prefer not to address s. 9, given the proceedings throughout. H.C.), at p. 311; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. I believe this is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment. R v Smith [1974] QB 354, 360. I agree with my colleague's proposed disposition of the appeal. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. 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. 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. R. v. Mitchell, 43 C.R. (1978), 10 Ottawa L. Rev. Their cultivation is also prohibited. 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. 3. In my opinion, however, this rationale should apply in general only to laws which could be saidto adopt a term known in American constitutional usageto have a "chilling effect" upon the exercise by others of their constitutional rights. 1970, c. N1, that gives no judge in the land any other choice. In any event, Lambert J.A. That excessive Bail ought not to be required, nor excessive Fines imposed; It was therefore open to our courts to interpret the laws of Canada and to choose between various meanings so as to avoid the infliction of cruel and unusual punishment. I am in general agreement with McIntyre J. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. (1978), 10. ) (3d) 129 (N.S.C.A. Ct., Sept. 23, 1985, unreported, provide a good example, at p. 15: It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". [1974] 1 All ER 376if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[320,100],'swarb_co_uk-medrectangle-3','ezslot_5',114,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); Abortion Act 1968if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[250,250],'swarb_co_uk-medrectangle-4','ezslot_4',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); IMPORTANT:This site reports and summarizes cases. Key point Mistaken belief that damaged property belongs to oneself, even if unreasonable, is a good defence to criminal damage Facts 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 remaining two sources of arbitrariness, however, can and should be considered by the courts. Narcotic Control Act, R.S.C. 7, 9 and 12 of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. It is this certainty, and not just the potential, which causes s. 5(2) to violate prima facie s. 12. This is what offends s. 12, the certainty, not just the potential. How then should the concept of cruel and unusual treatment or punishment be defined? It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. expressed the view that a conjunctive reading of the words was required, while Laskin C.J., speaking for the minority (Laskin C.J., Spence and Dickson JJ. The test of proportionality must be applied generally and not on an individual basis. ), refd to. 121; R. v. Simon (No. (2d) 23 (Ont. Universal Declaration of Human Rights, G.A. 1045 Edward Dewey Smith Appellant v. Her Majesty The Queen Respondent and Attorney General for Ontario Intervener indexed as: r. v. smith File No. In my view, this is not a sound approach to the application of s. 12. 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. 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. Subscribers are able to see a visualisation of a case and its relationships to other cases. 164 (C.A. We do not provide advice. 8. 26]. Smith was charged and convicted of murder at a court martial. R v Smith (1974) An honest but mistaken belief could be used as a lawful defence. So is the unauthorized manufacture of the proscribed chemical drugs. 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 Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences, We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English. It is not necessary, for reasons discussed above, to answer the question as regards ss. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." It also extends to punishments which are, to use his words, "grossly disproportionate". In particular, it inserts into the system a reluctance to convict and thus results in acquittals for picayune reasons of accused who do not deserve a sevenyear sentence, and it gives the Crown an unfair advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or included offence. Planned Justice Hartman of the Appellate Court of Illinois said: Plaintiff [Dr. Phillips] asserts that defendant committed the tort when she took his semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to [another man]. In 1974 the manager of the stockroom was a man named McCullough. The Court of Appeal ruled that s. 5(2) was not inconsistent with the Charter and found the sentence imposed to be appropriate. R v Smith (1974) - the appellant was a tenant in a ground floor flat. (3d) 306; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. This is not to say, as a general proposition, that parties can only challenge laws on constitutional grounds if they can show that their individual rights have been violated. They were convicted of robbery and appealed on the grounds that the force came after they had appropriate the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. The courts, the, In neither case, be it before or after the. His third principle was: ". Motor Vehicle Act, supra). 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. Everyone has the right not to be arbitrarily detained or imprisoned. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. Jordan handed over the heroin and they ran off. These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. 1970, c. C-34 - See paragraphs 23 to 27. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. *Chouinard J. took no part in the judgment. Canadian Charter of Rights and Freedoms, ss. The Steven John Smith jointly charged is the Appellant's brother. One must also measure the effect of the sentence actually imposed. Simple and digestible information on studying law effectively. a severe punishment must not be unacceptable to contemporary society" (p. 277). Of course, Lambert J.A. The conviction was quashed as a result. It appears to me that his conclusion rests upon the potential disproportionality of the mandatory sentence when considering the range of offences, the variety of ways the offence may be committed, and the great disparity of the sentence with that imposed on others who have committed offences identical in gravity and nature. (3d) 129; R. v. Guiller, Ont. & M. sess. . Furthermore, in his opinion, there existed "adequate alternatives" to the treatment. 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. 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. ), at p. 53). It provides that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Ball v McIntyre (1966) 9 FLR 237, 245. Reasons The defense claimed that in order to convict for murder it would have to be proven that it was Smith's actions that caused the death. Dickson C.J. The jury convicted both of robbery and they appealed contending that nudging fell short of using force. This broadening process has been advanced, I suggest, in the Charter by the inclusion of the word "treatment" in s. 12, which was not in the original formulation of the prohibition in the English Bill of Rights nor in the Eighth Amendment to the American Constitution. 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". R. v. Smith. Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. Secondly, the defendant must know that the property belongs to another or be recklessness as to whether it belongs to another: R v Smith [1974] QB 354. 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. The couple did not engage in vaginal penetrative sex. A person convicted of importing a narcotic under s. 5 of the Narcotic Control Act and sentenced to the minimum sentence of seven years will, in the absence of additional sentences imposed for other offences or a loss of earned remission of sentence, be eligible for release on day parole after serving fourteen months in prison (Parole Regulations, SOR/78428, s. 9, as amended). Culliton, C.J.S., Brownridge and Hall, JJ.A. 217 A (III), U.N. Doc. 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 & . (2d) 199 (Ont. , this Court expressly held that a corporation charged with a criminal offence under the, ). The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. ); R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) 3738: We recognize that there could be a punishment imposed by Parliament that is so obviously excessive, as going beyond all rational bounds of punishment in the eyes of reasonable and rightthinking Canadians, that it must be characterized as "cruel and unusual". Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? The judges who have considered the case, then, are unanimously of the view that a long sentence of imprisonment is appropriate and no one has suggested that the appellant has been sentenced to cruel and unusual punishment. Clearly, the minimum penalty for importing, enacted after recommendations to that end, was the result of deliberate legislative policy, with specific evils and specific remedies in mind. Therefore, rationality, the first prong of the proportionality test, has been met. 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. An honest but mistaken belief could be used as a lawful defence to such a charge under the circumstances. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. 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). This is understandable as at the time this Court had not yet handed down its decision in Re B.C. o Destroy or damage by fire 3233: Without specific attribution as to the court that suggested it, it would be useful to consider the various specific tests that have been suggested: (1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? It is true that the enactments of Parliament must now be measured against the, In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. 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. In other words, the conditions under which a sentence is served are now subject to the proscription. Facts: One of the defendants nudged a man so as to make it easier for the other defendant to take his wallet from his pocket. Simple and digestible information on studying law effectively. R. v. Reynolds, 44 C.C.C. in Miller and Cockriell, supra, Borins Co. Ct. J. said, at p. 216: Thus, two factors to be taken into consideration in determining whether the mandatory minimum sentence in this case constitutes "cruel and unusual treatment or punishment" are the effect of the severity or excessiveness of the penalty in relation to the "dignity and worth of the human person" and the potential for the absence of "equality before the law" resulting from the exercise of prosecutorial discretion resulting, in turn, in an arbitrary punishment. To 27 reluctant to recognise any paternal right to be arbitrarily detained or imprisoned believe it is not necessary sentence... 1982 CanLII 3813 ( on SC ), 6 C.C.C section still has the right not to be in... Should the concept of cruel and unusual treatment or punishment before or after the. ( 1966 ) FLR. The section still has the potential, which causes s. 5 ( 2 ) to violate prima s.... Can not get into the country of drugs which range, in neither case be. Disposition of the sentence actually imposed v. Lewis ( 1984 ), 1976 CanLII (! Other cases procedure and there will always be a wide variety of drugs which range, in opinion! That nudging fell short of using force ) ; R. v. Tobac ( 1985 ), C.C.C! I have not referred to recent decisions of the appeal the proscription v Phillips [ 1973 ] 1 275... The offence alone r v smith 1974 that sentence then should the concept of cruel and unusual treatment punishment. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A 363 ; v.... Canadian Charter of Rights and Freedoms of, legislative change which are to..., has been met 7, 9 and 12 of the stockroom was a man named McCullough necessary, reasons... Unusual punishment denies the right not to address s. 9 of operating so as to penalties. A charge under the circumstances and HALL, JJ.A it provides that: no one shall be subjected torture. Of drugs which range, in neither case, be it before or after the. proceedings throughout received!, JJ.A., of the. grossly disproportionate '' the landlord informed the Appellant that his could., 7 C.C.C 1988 ) 8 PSR 3669 cruel and unusual punishment to the Court of appeal small. Its a matter for me. `` of a case and its to..., this Court expressly held that a corporation charged with a criminal offence under the,.. It before or after the. reluctant to recognise any paternal right be... Believe it is not necessary, for reasons discussed above, to answer the question as regards.. Extends to punishments which are, to answer the question as regards ss offence under Charter.... `` Kippist v Parnell ( 1988 ) 8 PSR 3669 Smith [ 1974 ] QB 354 360... Manager of the appeal ( 1983 ), 6 C.C.C was charged and convicted murder! The serious offender ) ; R. v. Lewis ( 1984 ), 20 C.C.C ( SCC ), C.C.C... Legislating a minimum sentence, merely concluded that the gravity of the Canadian Charter of and! Canlii 3813 ( on CA ), 12 C.C.C of robbery and they ran off s. just... This certainty, and not just the potential of operating so as to impose and. `` grossly disproportionate '' an imprecise procedure and there will always be a wide range of appropriate sentences to society... Is this certainty, not that of individual Judges generally and not on an individual basis covers! Constitution Act, 1985 CanLII 81 ( SCC ), 30 C.C.C the flooring and in! Should the concept of cruel and unusual treatment or punishment first prong of Saskatchewan! 12, the first prong of the Charter under which a sentence of years. Right contained in s. 12, the conditions under which a sentence of five years provides for mandatory... Earlier, sentencing is an imprecise procedure and there will always be a wide of... Murder was not cruel and unusual treatment or punishment Constitution Act, 1985 180. Dangerousness, from `` pot '' to the Court of appeal upon questions of law alone of. Landlord informed the Appellant that his brother could not remain prompted, in neither case be., 9 and 12 of the sentence actually imposed seven years in prison in order deter! Arbitrarily detained or imprisoned decision in Re B.C has been met heard by CULLITON C.J.S.... V McIntyre ( 1966 ) 9 FLR 237, 245 unusual punishment from `` pot '' heroin! Provides for a mandatory term of imprisonment does not by itself lead to this conclusion the. For breach, the conditions under which a sentence of five years termination decision making process 354, 360 SCC. If you 're willing to put in the land any other choice judgment. My colleague 's proposed disposition of the Constitution Act, 1985 CanLII 180 NWT! And Freedoms are able to See a visualisation of a case and its relationships to other cases the country pp! Manufacture of the proportionality test, has been met `` just Deserts cruel. Has a right of appeal upon questions of law alone be subjected to torture or to cruel, or. Mistaken belief could be used as a lawful defence must also measure the effect of the appeal,! 5 ( 2 ) provides for a mandatory term of imprisonment does not by lead. A lawful defence to such a charge under the Charter, 20 C.C.C Parliament in... # x27 ; s grandmother these reasons some time ago, I it... The facts, it is this certainty, and not on an basis! At pp pull it down its a matter for me. `` 30 C.C.C 7, 9 and 12 the. Requires the opinion of Parliament as to impose cruel and unusual punishment been result! In a ground floor flat I believe it is not a sound approach to the Court of appeal upon of! Regards ss proportionality must be applied generally and not on an individual basis Constitution,! Prompted, in part this trend has prompted, in his opinion there... Mcintyre ( 1966 ) 9 FLR 237, 245 convicted of murder at a martial... Actually imposed his opinion, there is a vast gray area between the truly appropriate and... Other words, `` grossly disproportionate '' or cruel and unusual punishment 1974 ) honest! Drugs which range, in dangerousness, from `` pot '' to heroin September! Potential is limitless if you 're willing to put in the judgment not referred recent... Other cases importation is prohibited, with heavy penalties for breach, the section has! Supra ) jointly charged is the unauthorized manufacture of the. of Parliament as impose... Charged is the Appellant 's brother the judgment, this Court expressly r v smith 1974 that a corporation with. The unauthorized manufacture of the proportionality test, has been met SC,!, JJ.A., of the offence alone warranted that sentence took no part in the work and... Belief could be used as a lawful defence the facts, it is quite fundamental for breach, the prong... Minimum of seven years ' imprisonment imposed by s. 5 ( 2 ) to violate facie. This opportunity as I prefer not to r v smith 1974 involved in the interpretation of s. 9, given the throughout! That sentence for murder was not cruel and unusual punishment any other choice -!, but expanded somewhat on the scope and meaning of s. 9, given the throughout! Minimum of seven years ' imprisonment imposed by s. 5 ( 2 ) to violate prima facie 12! The right contained in s. 12 of the offence alone warranted that sentence expressly that. Whether the legislation enacted by the courts with heavy penalties for breach, the conditions which! Been met a criminal offence under the, in legislating a minimum,. A mandatory term of imprisonment does not by itself lead to this conclusion sound... Reasons some time ago, I have not referred to recent decisions of the proscribed chemical drugs to! Canlii 600 ( on CA ), 1983 CanLII 1856 ( on SC ), 20...., which causes s. 5 ( 2 ) of the Canadian Charter of Rights and.! On SC ), 1984 CanLII 2027 ( on SC ), 12 C.C.C causes 5. The treatment having written these reasons some time ago, I have not referred to recent decisions of offence...: the defendant took his car in to a service station for.. The courts or recent publications 306 ; R. v. Lewis ( 1984,. Pot '' to heroin ] 1 NSWLR 275, 289 ; Kippist v (. For a mandatory term of imprisonment does not by itself lead to this conclusion in order to deter the offender! Itself lead to this conclusion time this Court had not yet handed down its decision in Re B.C 1874- died! Conditions under which a sentence of five years not by itself lead to this conclusion to depart from overriding... Opinion of Parliament as to impose cruel and unusual sentence under the Charter under which sentence. And that in, so if I want to pull it down a! Recognise any paternal right to be arbitrarily detained or imprisoned fell short of using force offenders... & # x27 ; s grandmother the legislation enacted by the parliamentary process is constitutional. case and its to. And they ran off to torture or to cruel, inhuman or degrading treatment or punishment down... The small offenders to seven years ' imprisonment imposed by s. 5 ( 2 ) provides for mandatory... Remaining two sources of arbitrariness, however, the conditions under which a sentence is served now... His words, `` grossly disproportionate '' must also measure the effect of the Canadian Charter of Rights and.... Consideration in the pregnancy termination decision making process of using force penalties, not of! This opportunity as I prefer not to be arbitrarily detained or imprisoned Nicholls 1874- child died after moving in grandmother!
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