It only applied to males, since homosexual acts between women were not criminal anyway. Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. Study Mens Rea - Intention and Recklessness flashcards from Rhys Brennan's class online, or in Brainscape's iPhone or Android app. More v. The Queen, [1963] S.C.R. She did not withdraw any of the money from her bank account. Further, after considering the justifications of deterrence and retribution, he concluded at pp. (3d) 138 (T.D. ), c. 35, was introduced and passed. R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. [para. 5, 9, as am. The judgment of the Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on December 31, 1979. The new Narcotic Control Act, 196061 (Can. R. v. Reynolds, 44 C.C.C. 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). R v Smith [1959] 2 QB 35 CAUSATION Facts The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. 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. 103. Therefore, rationality, the first prong of the proportionality test, has been met. 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. 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. See also . (No. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. [Cite as Smith v. Smith, 2021-Ohio-1955.] The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker, Testing Fidelity to Legal Values: Official Involvement and Criminal Justice, Queen's Bench Division (Administrative Court), The Modern Law Review Nbr. How then is this compendious expression of a norm to be defined? The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. I have considerable misgivings about determining the issue of the constitutional validity, on its face, of the mandatory minimum sentence in s. 5(2) on the basis of hypothesis. The role of Parliament in the determination and definition of this aspect of public policy would be eliminated. Where Do We Look for Guidance?" In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? dealt thoroughly and exclusively with s. 9. 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. I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. 9 and 7 of the Char ter. 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. (3d) 336; R. v. Morrison, Ont. 1, 12 Narcotic Control Act, R.S.C. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. Appeal allowed, McIntyre J. dissenting. 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. It is not the intention of this piece to address the correctness of the tabled amendment nor is it the intention of this piece to discuss the rights or wrongs of abortion. A separate section created an offence of "dealing in" drugs with unauthorized persons, with lesser penalties. 9. In the present appeal, the Crown had but one argument. 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. 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. Canadian Sentencing Commission. 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. Many of these principles have already found their way into Canadian jurisprudence, particularly the early decisions interpreting the cruel and unusual punishment clause of the Canadian Bill of Rights. Murder - First degree murder, meaning of "planned and deliberate" - Criminal Code, s. 214(2) - The Saskatchewan Court of Appeal referred to several meanings of the words "planned and deliberate" - See paragraphs 23 to 27. Macdonald J.A. R v Pittwood (1902), R v Smith (1869) 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. These matters in my view raise what are essentially questions of policy and as such they are of necessity considerations effecting the decision of Parliament as to whether or not the death penalty should be retained;. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. 152, 68 C.C.C. ); R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. Ct., Borins Dist. Moreover, a wide discretion remains with the trial judge to consider the particular circumstances of the accused in determining whether a lesser sentence than the maximum sentence of life imprisonment should be imposed. ), p. 790; and Mitchell, supra). The second criterionproportionality of the means chosenwas not met. Yet the judge has no alternative under the section. In this development great assistance can be obtained from the American precedents, across their rather broad spectrum, and to a lesser extent, from some of the articles in the American periodicals. Does the punishment go 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? (Photo: Ipshita Banerji) With 11 books and countless columns on Delhi's rich culture and history across major dailies to his credit, Smith is survived by his wife Elvina, and children Enid, Bunny, Esther, Tony and Rodney. The Court of Appeal stated that the killing was the result of a sudden impulse - See paragraph 31. Powell J., speaking for the majority, held that the Eighth Amendment "prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed" (p. 284). [Emphasis in original.]. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. 's conclusion. [para. Advanced A.I. A claim which was eventually rejected. He concluded that capital punishment for murder of a peace officer did not contravene this norm and concurred with his colleagues in dismissing the appeal. Employing it here, and considering what was said, with respect to the enactment of s. 5(2) of the, Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the, He was uncertain as regards the proper approach to be taken when assessing whether legislation, which, . Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. 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. Trafficking in any of them is a serious offence. In separate reasons, Dickson J., as he then was, agreed with this definition; his disagreement was on another aspect of the notion of importing, which is irrelevant to this case. As regards this subject the comments by Borins Dist. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled Sentencing Reform: A Canadian Approach (1987), which gives some support to my conclusion. Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. See details 164 (C.A. A punishment will be cruel and unusual and violate. ) It was "unusual" because of its extreme nature. 9 and 12 of the Charter. The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, for example, Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. 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" (, At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the, As indicated above, the offence of importing enacted by s. 5(1) of the, This is what offends s. 12, the certainty, not just the potential. The approach has been frequently adopted in other cases and, in my view, provides a sound approach to the interpretation of the words in question (see, . 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. 68990: 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. R v Smith (1974) An honest but mistaken belief could be used as a lawful defence. ), affirmed by 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 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. 152, refd to. 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. (2) Is it unnecessary because there are adequate alternatives? 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. 69697 that he could not find "that there was no social purpose served by the mandatory death penalty so as to make it offensive to" the cruel and unusual punishment clause of the Canadian Bill of Rights. The trial judge directed the jury to acquit. 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. Applying the remaining tests, he found that, while all punishment is degrading, the death penalty was not particularly degrading when it was considered in relation to the offences for which it was imposed. Simple and digestible information on studying law effectively. I offer no opinion as to what a court would decide in respect of any of these examples of treatment should a challenge be made. L.R. 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. 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