9. 8354) Indexed As: R. v. Smith. The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. The result sought could be achieved by limiting the imposition of a minimum sentence to the importing of certain quantities, to certain specific narcotics of the schedule, to repeat offenders, or even to a combination of these factors. 7, 9 and 12 of the Charter. ), refd to. Ct.); R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. 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. 121, per Rand J., at pp. "Look, how can I be done for smashing my own property. 5, 9, as am. It provides that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The test of proportionality must be applied generally and not on an individual basis. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. The examples have however exclusively concerned actions seeking the prevention of a termination. Where Do We Look for Guidance?" The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. I should add that I do not wish this manner of disposition to be taken as any indication whatsoever of what I may think the appropriate sentence in this particular case might be. See F Stark, 'Judicial Development of the Criminal Law by the Supreme Court' (2020) 0 OJLS 1; Zach Leggett, "The New Test for Dishonesty in Criminal Law-Lessons from the Courts of Equity" (2020) 84(1) The J Crim L 37; Karl Laird, He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Once there the treatment given was described as palpably wrong. 264 (QB), R. v. Ayotte (J.K.), (1998) 81 O.T.C. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? This legislative determination does not transform the sentencing procedure into an arbitrary process. 1. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. In the meantime the Bill of Rights had been enacted. 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. Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. & M. sess. 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. There is no problem of definition nor of recognition of cruel and unusual treatment or punishment at the extreme limit of the application, but of course the day has passed when the barbarous punishments of earlier days were a threat to those convicted of crime. (7) Is it in accord with public standards of decency or propriety? The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. 5. Subscribers are able to see a list of all the cited cases and legislation of a document. The defendant obtained authority from the manager to supply the goods. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to. 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. 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. ), p. 790; and Mitchell, supra). No discretion to any sentencing authority is permitted, no exception to its application is provided. I help people navigate their law degrees. This case arose out of a charge of first degree murder. 217 A (III), U.N. Doc. Res. [para. 1970, c. N1, ss. 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". Motor Vehicle Act, supra). 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. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. (3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. The second criterionproportionality of the means chosenwas not met. Areas from which duties can arise from Duties arising through contractual obligations. See details I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the mandatory minimum sentence will oblige the judge to impose a cruel and unusual punishment and thereby is a prima facie violation of s. 12; if it is, it must be reconsidered under s. 1 as to purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. Added to that potential is the certainty that upon conviction a minimum of seven years' imprisonment will have to be imposed. 8. 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. 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. Only full case reports are accepted in court. Le Dain J.I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. The minimum will surely deter people from importing narcotics. R. v. Smith (No. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. 1, 2(a), 7, 9, 12. ", As Lamer J. has indicated at p. 1069 of his judgment, these are the tests which have been generally applied in the cases heard so far under, Dealing with the first test, is the punishment of such character or duration as to outrage the public conscience or be degrading to human dignity? Since it is essential that individuals be free to exercise their constitutional rights as far as is reasonably possible without being forced to incur the expense of litigation or to run the risk of violating the law, parties who have run afoul of a statute may on occasion be permitted to invoke the rights of others in order to challenge the overall validity of the law. Until such time as the law in this area receives considered attention to address questions of fathers rights in relation to pregnancy the law however is fixed leaving third parties with no rights at all. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. 1970, c. P2, s. 15, as am. 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. There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. (3d) 256) disposed of ss. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. *You can also browse our support articles here >. 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. Seven years, on the other hand, is that excessive and this, in my view, is why it cannot survive the constitutional challenge under s. 12. 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. + C $3.00 shipping. (3d) 277 (Alta. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. Suffering behind female sex workers: Why we should oppose legalisation of prostitution. Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Clearly there is no need to be indiscriminate. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. 5 of the Universal Declaration of Human Rights (G.A. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of coldblooded nonusers), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. 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. (2d) 158; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. 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. 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. 171 (Man. 2, c. 2, s. 10. In the later case of Gregg v. Georgia, 428 U.S. 153 (1976), the court considered a Georgia statute which had been specifically amended to conform with the majority opinions in Furman. In the present appeal, the Crown had but one argument. 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. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. (2d) 557 (N.W.T.S.C. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 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. The law of England gives him no such right; the Abortion Act 1967 contains no such provision. I would answer the constitutional question as follows: QuestionWhether the mandatory minimum sentence of seven years prescribed by s. 5(2) of Narcotic Control Act, R.S.C. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. 1970, c. C-34 - See paragraphs 23 to 27. 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. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. He would have imposed a sentence of five years' imprisonment. The addition of treatment to the prohibition has, in my view, a significant effect. 102 (B.C.S.C. But that does not mean that judges have been authorized to substitute their opinion for that of the Legislature which under our democratic system is empowered to enunciate public policy. 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