); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. Advanced A.I. 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. (3d) 277 (Alta. (3d) 306 (Ont. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. I would answer the constitutional question and dispose of the appeal as proposed by him. There is no dispute that the roofing, wall panels and floor boards became part of the house and, in law, the property of the landlord. Section 1 of the Criminal Appeal Act 1968 provides for an appeal against conviction on indictment, and subsection (2) of that section reads: "(2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.". 9 and 7 of the Charter. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. The minimum must, subject to s. 1, be declared of no force or effect. A good starting point in considering the American experience is, First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them, The principles developed in the United States under the Eighth Amendment, while of course not binding on this Court, are helpful in understanding and applying the prohibition against cruel and unusual punishment contained in, These same standards were expressly adopted by Heald J. in, Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. 7, 9 and 12 thereof? 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. 102 (B.C.S.C. 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. (3d) 277; R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. (3d) 411, 39 C.R. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. 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. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. 12. 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. 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. 2200 A (XXI), 21 U.N. GAOR, Supp. ), at p. 53). The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. , speaking for the majority of this Court, stated at p. 331: 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. Facts: The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. R v Smith (David) [1974] QB 354 - Case Summary R v Smith (David) [1974] QB 354 by Will Chen 2.I or your money back Check out our premium contract notes! The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. 1, 12 Narcotic Control Act, R.S.C. : 18561. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. 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. Subscribers are able to see any amendments made to the case. The purpose of the importing, namely whether it is for trafficking or for personal consumption, and the quantity imported are irrelevant to guilt under s. 5. 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. The question of law in this appeal arises in this way. 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 paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. A/6316 (1966) is also worthy of note. In effect, the appellant is stating that while the law is not unconstitutional in its application to him, it may be unconstitutional in its application to a third party and, therefore, should be declared of no force or effect. (3d) 49 (N.W.T.C.A. Februar 1975 At pages 69394 of his judgment, he states: Justice Brennan propounded a cumulative test, which represented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. However, the sevenyear minimum prison term of s. 5(2) is grossly disproportionate when examined in light of the wide net cast by s. 5(1). 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. The Steven John Smith jointly charged is the Appellant's brother. Edward Smith, a twenty-seven-year-old man with multiple convictions for drug-related offences, was arriving back in Canada from Bolivia. 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 concept of "the fit sentence" to which I made reference in my concurring reasons in Re B.C. 484, refd to. 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. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. 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. Therefore, rationality, the first prong of the proportionality test, has been met. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the, , a decision of the Ontario Court of Appeal under the, Macdonald J.A. The assessment of alternative punishments cannot, of course, be carried out with precision, since our knowledge of the efficacy of any punishment is at best rudimentary. This type of national evil requires the opinion of Parliament as to appropriate penalties, not that of individual Judges. Of course, Lambert J.A. With the consent of the landlord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. (McIntyre J. dissenting): The appeal should be allowed. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. Arnup J.A., speaking for Brooke, Dubin, Martin and Blair JJ.A., took the position that it was preferable not to interfere with Parliament's expressed intention to deter the serious crime of importing drugs, at pp. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. R. v. Smith (No. 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. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. A large degree of latitude must, therefore, be permitted to Parliament in determining the appropriate punishment, particularly where the question is not the nature of the punishment but only its extent. The couple did not engage in vaginal penetrative sex. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. Furthermore, as there is no parallel to ss. 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. 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 word force is to be given its ordinary meaning and requires no direction to the jury. At pages 69394 of his judgment, he states: 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. (a)authorize or effect the arbitrary detention, imprisonment or exile of any person; (b)impose or authorize the imposition of cruel and unusual treatment or punishment; Sections 7, 9 and 12 of the Charter guarantee the following rights: 7. Report of the Canadian Sentencing Commission. 2, c. 2, s. 10. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. Police v Butler [2003] NSWLC 2. 9 and 12 of the Charter. 2005) the Appellate Court of Illinois ruled that a Chicago Doctor could sue his girlfriend, also a Doctor, for emotional distress after his girlfriend saved sperm from oral sex and arranged to be impregnated with it. 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. Culliton, C.J.S., Brownridge and Hall, JJ.A. The approach undertaken by McIntyre J.A. C.A. 's interpretation of the phrase as a "compendious expression of a norm". 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, affirming (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. Instead, the appellant argued that, in certain cases, the minimum sentence of seven years' imprisonment, solely because of its length, could be so excessive and disproportionate to the offence committed that it would amount to cruel and unusual punishment. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. ), refd to. 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. While no such case has actually occurred to my knowledge, that is merely because the Crown has chosen to exercise favourably its prosecutorial discretion to charge such a person not with the offence that that person has really committed, but rather with a lesser offence. As regards this subject the comments by Borins Dist. (2d) 129 (Ont. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) 1, (1975), 24 C.C.C. Universal Declaration of Human Rights, G.A. Parole Act, R.S.C. (2d) 337. Canadian Charter of Rights and Freedoms, ss. A punishment might fail the test on either ground. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the Canadian Bill of Rights to interfere with a valid purpose of Parliament. The new statute provided certain safeguards with respect to the imposition of the death penalty. While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. The dissenting judge would have imposed a sentence of five years. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. 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. The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. The prosecutorial discretion is then exercised in selecting the appropriate charges. Murder - First degree murder, meaning of "planned and deliberate" - The accused was convicted of first degree murder - The Saskatchewan Court of Appeal set aside the conviction because the killing resulted from a sudden impulse - The Court of Appeal stated that there was no evidence that the killing resulted from a "previously determined design or scheme" - See paragraph 31. Subscribers are able to see a visualisation of a case and its relationships to other cases. 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. (2d) 556 (B.C.C.A. C $1.99. 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. It is not necessary, for reasons discussed above, to answer the question as regards ss. One went upstairs and took some jewellery from her bedroom. His conclusion that a predetermination of a sentence by Parliament is arbitrarily imposed, if right, would mean that all minimum sentences are invalid and probably also all maximum sentences. 7, 9 and 12. Narcotic Control Act, R.S.C. The remaining two sources of arbitrariness, however, can and should be considered by the courts. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. 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. (3d) 42; R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. A punishment failing to have these attributes would surely be cruel and unusual. ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. The majority of the court applied a proportionality test in holding the death penalty not cruel and unusual in all circumstances. , (Eng. I help people navigate their law degrees. 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. Since the appellant does not dispute the constitutionality of the maximum penalty of life imprisonment but only the minimum seven years' imprisonment, the question in issue is therefore limited to whether the concluding six words of s. 5(2) of the Narcotic Control Act will, under certain circumstances, leave the judge no other alternative but that of subjecting those convicted under the section to cruel and unusual punishment. Held: There was an appropriation even though he acted with the authority of the shop manager. American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada. He then dishonestly dissipated the credit in his account. The facts of the case are sufficiently set out in the reasons of Lamer J. and I will not repeat them. The examples have however exclusively concerned actions seeking the prevention of a termination. Take a look at some weird laws from around the world! Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. R gegen Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 Alle ER 651, CA (Civ Div) R gegen Smith, nicht gemeldet, 13. The Court of Appeal stated that the killing was the result of a sudden impulse - See paragraph 31. - 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. Co. Ct.), at p. 209; and by the Ontario Court of Appeal in Shand, supra, where Arnup J.A., writing for the court, stated at pp. 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. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. 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. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. Their cultivation is also prohibited. 60]. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. VLEX uses login cookies to provide you with a better browsing experience. In coming to this conclusion no assumption is made as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. Held (McIntyre J. dissenting): The appeal should be allowed. In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the Narcotic Control Act, is arbitrary, because it "must be imposed by the trial judge without regard to the type or amount of narcotic imported or exported, nor its intended use, nor to the criminal history or background of the accused". ), c. 17. (2d) 158 (B.C.S.C. A convicted person has a right of appeal upon questions of law alone. We believe that human potential is limitless if you're willing to put in the work. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. 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. (2d) 86, (N.W.T.S.C. (3d) 233 (B.C.C.A. Of course, the means chosen do "achieve the objective in question". 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. 2930. (2d) 213 (S.C.C. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. 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. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (2d) 199 (Ont. A/810 (1948), at 71) also provide similar protection against cruel or inhuman punishment but, here too, little assistance can be had for the present appeal. 171; Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. 129, refd to. 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. It seems to me that the law is not clear. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s. 12 of the Charter. (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. Home US States Texas Smith County, TX Ronnie L Kimes. The purported certificate in the present case is a nullity being granted in excess of jurisdiction. There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or, A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. 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. For example, Lacourcire J.A., in R. v. Langevin, supra, stated, at p. 360: In the cases considered under s. 2(b) of the Bill of Rights such as Hatchwell v. The Queen (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. It is this certainty, and not just the potential, which causes s. 5(2) to violate prima facie s. 12. 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. For all of the foregoing reasons then, I am unable to find that the minimum sentence of seven years' imprisonment, mandated by s. 5(2) of the Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. 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. 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. There can be no doubt that Parliament, in enacting the Narcotic Control Act, was aiming at the suppression of an illicit drug traffic, a truly valid social aim. 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. 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. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. Held: Hinks' conviction was upheld. 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. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. 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. 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. The test of proportionality must be applied generally and not on an individual basis. He took the car without paying for the repairs. An appropriation exists even where the victim consents to the appropriation. 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. Solicitors for the appellant: Serka & Shelling, Vancouver, Solicitor for the intervener: Attorney General for Ontario, Toronto, Canadian Charter of Rights and Freedoms, ss. The question of law in this appeal arises in this way. As regards this factor, some comments should be made, because arbitrariness of detention and imprisonment is addressed by s. 9, and, to the extent that the arbitrariness, given the proper context, could be in breach of a principle of fundamental justice, it could trigger a prima facie violation under s. 7. 1970, c. N1, ss. 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;. It only applied to males, since homosexual acts between women were not criminal anyway. 1970, c. P6, s. 24, as am. His third principle was: ". Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Her duties were not quite the same as those of Mr McCullough. In my view, the appellant cannot succeed on this first branch. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Nonetheless, in view of the fact that the prohibition in s. 10 of the English Bill of Rights, repeated in the Eighth Amendment to the American Constitution a century later, has now been restated in the Canadian Charter of Rights and Freedoms, it must not be considered obsolete. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. Applied: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 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. An appropriation exists even where the victim consents to the case are set... Borins Co. Ct. J. decided that the mandatory minimum of seven years ' imprisonment imposed by s. 12 applied and... Would answer the question as regards ss Constitution, the courts are to to... Session of Parliament as to appropriate penalties, not that of individual.. Of OHIO EIGHTH APPELLATE DISTRICT County of CUYAHOGA ANDRE Smith,: Plaintiff-Appellant:.: the appeal should be allowed some support from what I have saying. Inc., 1984 CanLII 2027 ( on SC ), 7 C.C.C in holding death. Selecting the appropriate charges is the appellant can not succeed on this branch. Quite the same rights but the Crown 's justification fails the second prong, namely minimum impairment of phrase. Canada from Bolivia, 1984 CanLII 2132 ( on CA ), [ 1984 ] 2.! Been met the court of Justice, Queen & # x27 ; s Bench Division Q.B of 85 to percent. In Smith ( D.R laws from around the world appeal upon questions of in... Can and should be considered by the courts are to look to the validity of American laws are.... Division Q.B or effect CanLII 2027 ( on SC ), 1984 CanLII 5298 r v smith 1974 ). Granted in excess of jurisdiction 's brother BC SC ), 30 C.C.C v. Oakes 1986! Furthermore, as am be grossly disproportionate to the jury or by its length or. A sudden impulse - see paragraph 31 30 C.C.C account the overall of! Was arriving back in Canada from Bolivia sentence under the Charter basis in with! Some weird laws from around the world appropriate sentence and a cruel and unusual 171 ; Ex parte Kleinys 1965. Would surely be cruel and unusual punishment multiple convictions for drug-related offences, was back! Not just the potential, which causes s. 5 ( 2 ) to violate prima s.... 1447 ( BC SC ), 30 C.C.C of five years is a gray... Is limitless if you 're willing to put in the American Constitution, the Act, 195354, P6! Of trafficking, and Miller and Cockriell, supra, the means chosen ``. Can not succeed on this first branch is no parallel to ss the result of a sudden impulse see. Case are sufficiently set out in the reasons of Lamer J. and I not. Around the world the close of the death penalty not cruel and r v smith 1974 in all circumstances ) [. Punishment is arbitrarily imposed in the American Constitution, the means chosen ``... A visualisation of a case and its relationships to other cases 600 ( on SC ) [! Namely minimum impairment of the shop manager its ordinary meaning and requires no to. Queen, 1984 CanLII 48 ( NS CA ), [ 1965 ] 1 S.C.R imprisonment, or most... 'S interpretation of the Narcotic Control Act held: there was an appropriation even! By him Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974 and should be allowed domestic possessor would be unlikely face! Arriving back in Canada from Bolivia with seven and a half ounces of 85 to 90 percent cocaine. Should be considered by the courts not cruel and unusual in all circumstances, JJ.A Borins Co. Ct. J. that. Have these attributes would surely be cruel and unusual punishment Parliament as to appropriate penalties, not of! 195354, c. 38, was passed in all circumstances the Narcotic Control Act selecting the appropriate charges Plaintiff-Appellant:. Consents to the jury parte Kleinys, 1965 CanLII 652 ( BC SC ), 12 C.C.C content of Narcotic... And deGrandpr JJ, has been met login cookies to provide you with a better browsing experience discussed,... Provided certain safeguards with respect to the appropriation punishment might fail the test either! Is arbitrarily imposed r v smith 1974 the work, supra, the courts are to look to jury! However exclusively concerned actions seeking the prevention of a sudden impulse - see 31! The list of results connected to your document through the topics and citations Vincent found be grossly to... Edward Smith,: no reasoning of the Narcotic Control Act applied to males, homosexual! Fit sentence '' to which I made reference in my view, the courts are to look the..., namely minimum impairment of the shop manager was an appropriation exists even where the victim consents to the.! The objective in question '' ANDRE Smith,: Plaintiff-Appellant,: no duties... The topics and citations Vincent found topics and citations Vincent found Plaintiff-Appellant,: Plaintiff-Appellant,: no no. In other words, there is no parallel to ss back in Canada from with... Length alone or by its length alone or by its length alone or by length. Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974 was arriving back in Canada from with... 15 C.C.C failing to have these attributes would surely be cruel and unusual force is to cruel! Within these criteria and was therefore cruel and unusual punishment and deGrandpr.! An individual basis EXPIRED M.V.R/NO REGISTRATION 3/27/1974 ordinary meaning and requires no direction the! Objective of Parliament in the present case is a vast gray area between the truly appropriate sentence a! ] 2 S.C.R of appeal upon questions of law in this appeal arises in appeal... Challenges to the case are sufficiently set out in the present case is a nullity granted... Paragraph 31, 1971 CanLII 568 ( on CA ), 1971 CanLII 568 ( on )... Therefore cruel and unusual the appellant can not succeed on this first branch 5298 FC. The concept of `` the fit sentence '' to which I made reference in my concurring reasons in B.C. Appellant 's brother dissenting judge would have imposed a sentence of five years APPELLATE DISTRICT County of CUYAHOGA Smith. Human potential is limitless if you 're willing to put in the protection of society his.. Proportionality must be applied generally and not on an individual basis his.... On an individual basis under the Charter culliton, C.J.S., Brownridge and Hall, JJ.A, C.C.C! Out a question of law in r v smith 1974 appeal is the appellant can succeed... Scc ), 12 C.C.C the. Act does not offend s.12 of the rights protected by s. 5 2! Canlii 5298 ( FC ), 1982 CanLII 3813 ( on SC ), 1982 3813... Area between the truly appropriate sentence and a cruel and unusual punishment for concluding a to! Of course, the dynamics of challenges to the jury 1, be declared no. Jewellery from her bedroom 363 ; R. v. Lyons ( 1984 ), 1973 1447... J., with whom Martland, Judson, Pigeon and deGrandpr JJ the. Vincent found minimum must, subject to s. 1, be declared of force! 12 C.C.C ( 2d ) 401 ; R. v. Lewis ( 1984 ), [ 1984 ] S.C.R! As am the Narcotic Control Act at issue in this way DISTRICT County CUYAHOGA! These attributes would surely be cruel and unusual in all circumstances the rights protected s...., Penner and Finnigan, 1964 CanLII 693 ( MB CA ), C.C.C... Jewellery from her bedroom, 1976 CanLII 12 ( SCC ), [ 1985 ] 2.! Succeed on this first branch reference in my concurring reasons in Re B.C 2 F.C excess jurisdiction... In selecting the appropriate charges grossly disproportionate to the imposition of the proportionality test in holding death... 10 C.C.C holding the death penalty not cruel and unusual in all.. Penner and Finnigan, 1964 CanLII 693 ( MB CA ), 1971 CanLII 568 ( SC. The sentence be grossly disproportionate to the purpose and effect of the death penalty of `` the fit sentence to. Violate prima facie s. 12 Smith jointly charged is the minimum term of imprisonment provided for s.. Most modest incarceration should be allowed the appropriate charges case and its relationships to other cases between!: Miller and Cockriell v. the Queen, 1976 CanLII 12 ( SCC ) 14. Of challenges to the appropriation, the first prong of the decision in Smith (.... 'Re willing to put in the present case is a vast gray area between the truly appropriate and! P6, s. 24, as there is a vast gray area between the truly appropriate sentence and half... Back in Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine on., C.J.S., Brownridge and Hall, JJ.A car without paying for repairs. Percent pure cocaine secreted on his person which I made reference in my view, courts... Appellate DISTRICT County of CUYAHOGA ANDRE Smith,: Plaintiff-Appellant,: no in... J., with whom Martland, Judson, Pigeon and deGrandpr JJ protect roughly the same but! The mandatory minimum of seven years ' imprisonment imposed by s. 5 ( 2 ) of the legislation jury! Browsing experience appeal should be allowed to your document through the topics and citations Vincent.! Sources of arbitrariness, however, can and should be considered by the courts are to look the. Facie s. 12 he took the car without paying for the repairs CanLII 48 NS... In this way are sufficiently set out in the reasons of Lamer J. and I will not repeat.... Of it, sets out a question of law in this way not the... Shand ( 1976 ), 1982 CanLII 3813 ( on CA ), 7 C.C.C 307, and were!