Shakespeare, T., "'Losing the Plot?' 161. Res. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. Constitution of the United States of America. A husband sought injunctive relief to restrain the defendants from terminating his estranged wifes pregnancy in Paton v Trustees of the British Pregnancy Advisory Service [1979] QB 276. 7. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. A. P. Serka and Ann Cameron, for the appellant. -they believed they had consent from a person they wrongly . Ct. 1st Dist. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. Subscribers are able to see any amendments made to the case. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", That is because there are social and moral considerations that enter into the scope and application of s. 2(, I would adopt these words as well and say, in short, that to be "cruel and unusual treatment or punishment" which would infringe. It cannot be argued that arbitrariness or capriciousness resides in the limitation of the death penalty to the murder of policemen and prison guards, persons who are specially entrusted with the enforcement of the criminal law and with the custody and supervision of convicted persons. Canadian Charter of Rights and Freedoms, ss. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that "these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. See details Located in: Los Angeles, California, United States Delivery: Estimated between Fri, 3 Mar and Wed, 8 Mar to 23917 Payments: Returns: 30 day return. The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. 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. BLOG; CATEGORIES. 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. Dist. The gist of Wetmore Co. Ct. 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, . Once there the treatment given was described as palpably wrong. 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. Co. Ct.)). (No. Is it unusually severe and hence degrading to human dignity and worth? concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Under s. 5(2) of the Act, punishment continues to be imposed for reasons which are rationally connected with the objects of the legislation, that is, the suppression of the illicit traffic in drugs. and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. Where Do We Look for Guidance?" 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. (3d) 411, 39 C.R. 9 and 7 of the Char ter. (No. Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. Parliament has determined that a minimum sentence of seven years' imprisonment is necessary to fight the traffic in narcotics. 10. . 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. Subscribers are able to see a list of all the cited cases and legislation of a document. 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. ), c. 17. Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 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. 39; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Simple and digestible information on studying law effectively. This case, the obvious inspiration for Boston Legal episode Roe v Wade: The Musical, raises two important points: firstly a man deceived into creating a baby still has financial obligations to that child irrespective of deception and secondly even if deception is involved a father still has no right to be consulted in whether the pregnancy is terminated or not. This Court has already had occasion to address s. 1. , this Court set out the criteria which must be met in order to discharge this burden. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. 102 (B.C.S.C. Report of the Canadian Sentencing Commission. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Regardless of whether one feels that a father should or should not have any rights in determining whether a termination is carried out it seems unfair that in the event of fraud a father has no rights in determining whether he is to become a father or not, and more than that, the father has all the financial responsibilities commensurate with fatherhood without any of the choice. [para. Smith's brother lived with him in the flat, and they installed electric wiring, roofing material, asbestos wall panels, and floor boards in part of the flat. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 9. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. I agree with my colleague that this would be a cruel and unusual sentence to impose on a youthful offender with no previous record; indeed, it would be a sentence "so excessive as to outrage standards of decency": see Miller and Cockriell v. The Queen, supra, at p. 688. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. Per Le Dain J.: 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. 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 & . That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. It is not until the enactment of our own Canadian Bill of Rights, more particularly s. 2(b), that the courts addressed the meaning of those very words, cruel and unusual punishment. Thus, any comments on the meaning of s. 12 must be made with s. 9 in mind and, as whenever ss. However, the potential that such a person be charged with importing is there lurking. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. "Trafficking" was defined as meaning importation, manufacture, sale, etc. Theme by SiteOrigin. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. The Legislature may provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. '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. In that regard, he quoted a passage from, The courts have been given the power under, The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. 47]. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual. 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". On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act. 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. 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. Article 7 of the International Covenant on Civil and Political Rights, G.A. 219, 294, 303, 306, 325, 361. Ct. J. in R. v. Guiller, Ont. So is the unauthorized manufacture of the proscribed chemical drugs. The test for review under s. 12 of the Charter is one of gross disproportionality because s. 12 is aimed at punishments more than merely excessive. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. It may well be said that, in s. 12, the Charter has created an absolute right, that is, a right to be free or exempt from cruel and unusual punishment. It may well be excessive, but more than excess is required to meet the test of Laskin C.J. "Look, how can I be done for smashing my own property. It would, under the guise of protecting individuals from cruel and unusual punishment, unduly limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. The trial judge in his reasons ((1983), 35 C.R. Section 1 (1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. There is therefore no basis for allowing the appellant to invoke in the present appeal the rights of a hypothetical third party in order to challenge the validity of legislation. Save in rare situations, for example when the mens rea of a specific offence includes concepts of civil law (contrast R v Smith [1974] QB 354 and Johnson v Youden [1950] 1 KB 544) or where the definition of the offence itself expressly makes the defendant's beliefs about his legal righ . ), refd to. . Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the, Since the complaint is solely as to the duration of the minimum sentence provided in s. 5(2), it becomes relevant to consider the length of the sentence as it will be served. ), p. 790; and Mitchell, supra). 171 (Man. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). I put the flooring and that in, so if I want to pull it down its a matter for me.". 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. Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. 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. 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. 16) 52, U.N. Doc A/6316 (1966), art. He then dishonestly dissipated the credit in his account. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." Adopting Laskin C.J. We do not provide advice. 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. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. 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. Ct.), and Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. R v Pittwood (1902), R v Smith (1869) (2d) 438; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. Report of the Canadian Sentencing Commission. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. A punishment may be proportionate to the offence, in the sense that it does not outrage the public conscience or go beyond what is necessary for the achievement of a valid social aim, and yet still be cruel and unusual because it is imposed arbitrarily. La Forest J.: While in substantial agreement with Lamer J., nothing was said about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. I help people navigate their law degrees. [para. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. For example, legislation which provided an essentially random process for determining punishment divorced from any consideration of the relationship between the punishment and the social objective to be achieved would be cruel and unusual, even if the punishment actually imposed were proportionate to the offence. Where do we Look for Guidance? A guilty verdict under s. 5(1), however, will inevitably lead to the imposing of a totally disproportionate term of imprisonment for s. 5(1) covers many substances of varying degrees of danger, totally disregards the quantity imported and treats as irrelevant the reason for importing and the existence of any previous convictions. MR. L. GERBER appeared on behalf of the Crown. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 's statement of the test for cruel and unusual punishment under s. 12 of the Charter, including his approach to the application of disproportionality and arbitrariness. No discretion to any sentencing authority is permitted, no exception to its application is provided. The section does not violate ss. (2d) 557 (N.W.T.S.C. In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. The examples have however exclusively concerned actions seeking the prevention of a termination. 13940; R. v. Simon (No. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. In any event, Lambert J.A. The new Narcotic Control Act, 196061 (Can. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. Answer The mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. Third, a penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose [p. 331]. 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