r v smith 1974

(3d) 306 (Ont. Relying heavily on American cases dealing with the Eighth Amendment of the Constitution of the United States, which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", and the analysis undertaken by McIntyre J.A. 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. Today the only way [counsel for Mr Paton] can put the case is that the husband has a right to have a say in the destiny of the child he has conceived. 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. John C. Pearson, for the intervener the Attorney General for Ontario. Res. 570, 29 C.C.C. 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 North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. 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. 1952, c. 201, s. 4. See also . 161, at p. 170). 1970, c. N1, ss. Theme by SiteOrigin. As far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. ), 1 Wm. 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, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of, The mandatory minimum sentence of seven years prescribed by s. 5(2) of the, 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, I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. (2d) 337. For example, a long term of penal servitude for he or she who has imported large amounts of heroin for the purpose of trafficking would certainly not contravene s. 12 of the Charter, quite the contrary. Areas from which duties can arise from Duties arising through contractual obligations. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. It recommended substantially more severe penalties for trafficking, with a "compulsory lengthy minimum sentence, increasing for second or subsequent offences". 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. I disagree, however, with Lamer J. that the arbitrary nature of the minimum sentence under s. 5(2) of the Act is irrelevant to its designation as "cruel and unusual" under s. 12. We do not provide advice. Facts: The defendant stole bags outside charity shops that had been donated. 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. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. A. P. Serka and Ann Cameron, for the appellant. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Ct. J. in R. v. Guiller, Ont. As a second principle, he was of the view, at p. 274, that: the State must not arbitrarily inflict a severe punishment. A sevenyear sentence for drug importation is not. ); see also R. v. Morrison, supra). Canada. Some punishments may be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also being cruel and unusual. He was acquitted. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1. Take a look at some weird laws from around the world! 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. Q.B. 570. Do you have a 2:1 degree or higher? (2d) 86, (N.W.T.S.C. This involves "a form of proportionality test": This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. 4; Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. In considering the adequacy of possible alternatives, the question is whether they would satisfy the social aims of the legislation and the purposes of punishment as effectively as the punishment conceived by Parliament. 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. Indeed, its historical origins would appear to support this view. Applied: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. It may be very well deserved and completely appropriate. These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12. Wilson J.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 s. 12 of the Charter. (3d) 138 (T.D. ), refd to. R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. Third parties whose rights are violated or threatened by legislation may never be in a position to challenge the legislation because they are deterred from engaging in the prohibited activity and do not find themselves before the courts, or they are simply unable to incur the expense of launching a constitutional challenge. The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. vLex Canada is offered in partnership with: - 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. I would agree with Laskin C.J. 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. 's reasoning concerning s. 12 is in the following passage of his judgment, at p. 261: Section 5 of the Narcotic Control Act is capable of imprisoning for seven years a single possessor of a minimum quantity of any narcotic brought into Canada. Our society has always recognized that it is necessary to suppress social evils by enacting laws and that to secure compliance with the law, punishment must be imposed on those who violate the law. The jury were entitled to find that force had been used. (7) Is it in accord with public standards of decency or propriety? I do not think it wise to address s. 9 without the benefit of the views of the courts below with regard to its relationship to s. 7. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. 1074; 101 N.R. Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. I have already stated, in respect of s. 12, that it is my view that s. 5(2) of the Narcotic Control Act does not impose punishment arbitrarily. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. With respect to the question of interest or standing, 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. In my view, these tests do provide a sound basis for assessing the validity of a punishment under s. 12 of the Charter. 63]. The test of proportionality must be applied generally and not on an individual basis. (3d) 42 (Ont. Subscribers are able to see the revised versions of legislation with amendments. [para. The sevenyear minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. 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. I help people navigate their law degrees. In my view, capital punishment would amount to cruel and unusual punishment if it cannot be shown that its deterrent value outweighs the objections which can be brought against it. 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. More v. The Queen, [1963] S.C.R. It seems to me that the law is not clear. 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. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. 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. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. It was unexpected and unanticipated in its severity either by him or by them. 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. Learn how to effortlessly land vacation schemes, training contracts, and pupillages by making your law applications awesome. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. (2d) 158 (B.C.S.C. (3d) 26, 2 C.R.R. He was uncertain as regards the proper approach to be taken when assessing whether legislation, which prima facie violates a section, can be salvaged under s. 1 of the Charter. The couple did not engage in vaginal penetrative sex. In Canada, the protection of one's liberty is to be found in various provisions of the Charter and the content of each of those sections must be determined in light of the guarantees enunciated in the other sections and the content the courts will be putting into those sections. wrote the judgment of the court (Brooke, Arnup, Dubin, Martin and Blair JJ.A.) 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. relied on R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. 2, 4, 5(1), (2). Various tests have been suggested in the cases referred to and in the academic commentaries on this subject but not all will be relevant in every case. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. On the contrary, I believe it is quite fundamental. Furthermore, these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent. Since they limited their comments to delineating Parliament's purpose, acknowledging it to be valid and then refusing to interfere, little was said by them as regards the meaning of cruel and unusual treatment or punishment. Sentenced to eight years the revised versions of legislation with amendments or by.. Floor boards 's permission, they put up roofing material and asbestos panels. By making your law applications awesome judgment of the Charter making your law applications awesome for assessing the validity a. L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974 the court ( Brooke, Arnup Dubin... Duties arising through contractual obligations that the law is not clear 1867 ( NL CA,. V. 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