Over a period of 7 months, Hinks influenced, coerced and encouraged Mr Dolphin to withdraw sums, amounting to 60,000, from his building society account and for them subsequently to be deposited in Hinks' account. 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. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. Thus he found, as did Craig J.A., that the sentence was appropriate. The examples have however exclusively concerned actions seeking the prevention of a termination. App. 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: see Miller and Cockriell, supra; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. December 31, 1979. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. There are, in my view, three important components of a proportionality test. 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. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. It was not until fifteen years after the enactment of the Canadian Bill of Rights that a more in depth analysis of the protection afforded by s. 2(b) was undertaken. In the United States, where criminal law is within the competence of the state legislatures and thus varies from state to state, the judiciary was concerned with possible discrepancies in the imposition of the death penalty throughout their country. Facts: A travel agent received money from clients for deposits for their holidays. 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. 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. "A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation" (p. 314). As regards this subject the comments by Borins Dist. (3d) 26, 2 C.R.R. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. lawprof.co. [para. 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. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. (2d) 438 (Que. 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. 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. This type of national evil requires the opinion of Parliament as to appropriate penalties, not that of individual Judges. The couple did not engage in vaginal penetrative sex. (3d) 277 (Alta. o R v Instan 1893- niece failed to care for aunt after moving in during illness. 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. 27]. ); R. v. Morrison, Ont. Indeed, its historical origins would appear to support this view. R v Smith [1974] QB 354, 360. No issue arises on this point in this case. . The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. Given that situation, the disparity is so gross it is shocking to contemporary society, is unnecessary in narcotic control and results, therefore, in a punishment which is cruel and unusual. The only decision finding a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 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. 13940; R. v. Simon (No. ), p. 790; and Mitchell, supra). 1979, c. 288. : 18561. They must not be arbitrary, unfair or based on irrational considerations. The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. [para. Canada. La Forest J.I am substantially in agreement with my colleague, Lamer J. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. 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. There is a further point which should be made regarding proportionality. 1970, c. N1, s. 5(2). 63]. Parole Regulations, SOR/78428, ss. 186, refd to. 222 (1950), art. ), refd to. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. Simple and digestible information on studying law effectively. Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. The Charter right to be free from cruel and unusual punishment or treatment is absolute. The defendant obtained authority from the manager to supply the goods. ), refd to. Later, in Solem v. Helm, supra, any question of whether the concept of cruel and unusual punishment could be extended to include excessive sentences, as well as barbaric ones, was set at rest. Held (McIntyre J. dissenting): The appeal should be allowed. 7. , R.S.C. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. Police v Butler [2003] NSWLC 2. Unsurprisingly the European Commission described his claim as manifestly ill-founded and dismissed his claim, finding that his estranged wifes right to respect for her private and family life prevailed. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. 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. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? 's concept of "interacting expressions colouring each other" (see. In a summary he wrote, at pp. Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. The ruling itself is not the cause for discussion as the decision is not binding in the English courts however the actions which lead to the case being heard by the courts are the cause for discussion. I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. (3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. 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. At the conclusion of the trial the Deputy Circuit Judge purported to grant a certificate under, section 1(2) of the Criminal Appeal Act 1968, The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of, Section 5 of the Criminal Damage Act 1971, It seems to me that the law is not clear.". 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. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (2d) 86; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. reversed the decision of Borins Co. Ct. J. and held that s. 5(2) did not impose a punishment that was so disproportionate to the offence as to be cruel and unusual. The proceeds of this eBook helps us to run the site and keep the service FREE! This is understandable as at the time this Court had not yet handed down its decision in Re B.C. There are at least three ways in which the imposition of a punishment may be said to be arbitrary: the legislative decision to enact the law which provides for punishment could be arbitrary; the legislation on its face could impose punishment in an arbitrary manner; and finally, a body empowered to impose punishment could, in practice, impose the punishment arbitrarily. This was not accepted by the trial judge and Smith appealed the decision. ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. it was so unusual as to be cruel and so cruel as to be unusual. 219, 294, 303, 306, 325, 361. Recognizing this fact, the appellant does not attack s. 5(2) of the Narcotic Control Act on the ground that it violates s. 12 of the Charter in general, but rather on the ground that the imposition of "a mandatory minimum sentence of seven years" on a hypothetical "first time importer of a single marijuana cigarette" would constitute cruel and unusual punishment. The materials in question, consisting of audiovisual material and written stories, depicted acts of violence perpetrated against women by men. 10. . 16) 52, U.N. Doc. ), refd to. Subscribers are able to see a list of all the cited cases and legislation of a document. While not a precise formula for cruel and unusual treatment or punishment, this definition does capture the purpose and intent of s. 12 of the Charter and is consistent with the views expressed in Canadian jurisprudence on this subject. "The State, even as it punishes", he said, "must treat its members with respect for their intrinsic worth as human beings." Advanced A.I. Digestible Notes was created with a simple objective: to make learning simple and accessible. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the Canadian Charter of Rights and Freedoms. Solicitors for the appellant: Serka & Shelling, Vancouver, Solicitor for the intervener: Attorney General for Ontario, Toronto, Canadian Charter of Rights and Freedoms, ss. The courts, on the other hand, in the actual sentencing process have a duty to prevent an incursion into the field of cruel and unusual treatment or punishment and, where there has been no such incursion, to impose appropriate sentences within the permissible limits established by Parliament. We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English Bill of Rights of 1688, 1 Wm. Adopting Laskin C.J. These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. ); see also R. v. Morrison, supra). The "street value" of the narcotic, after dilution, was estimated to be between $126,000 and $168,000. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. was followed by Borins Co. Ct. J. of the County Court of Ontario in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. H.C.)), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (R. v. Dick, Penner and Finnigan, supra, and R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. It is generally accepted in a society such as ours that the state has the power to impose a "treatment or punishment" on an individual where it is necessary to do so to attain some legitimate end and where the requisite procedure has been followed. R. v. Smith. Facts: The two defendants broke into a woman's home. Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434: I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness. At customs he was searched and the officers found over seven ounces of cocaine. ), refd to. 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . Yet the judge has no alternative under the section. 62]. [Cite as Smith v. Smith, 2021-Ohio-1955.] Subscribers can access the reported version of this case. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. Co. Ct., Mossop Co. Ct. J., July 7, 1983, unreported). 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. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. (Proportionality is to be determined on a general rather than an individual basis.) Wikibrief. Yet, as Lamer J. points out, s. 5(2) of the Narcotic Control Act precludes the imposition of a sentence less than seven years for the importation of even a minimal quantity of marihuana, a solitary cigarette. But on 1 March 1976 a woman [Mrs Smith] was appointed to be manageress of the stockroom.. in Miller and Cockriell, supra, Borins Co. Ct. J. said, at p. 216: Thus, two factors to be taken into consideration in determining whether the mandatory minimum sentence in this case constitutes "cruel and unusual treatment or punishment" are the effect of the severity or excessiveness of the penalty in relation to the "dignity and worth of the human person" and the potential for the absence of "equality before the law" resulting from the exercise of prosecutorial discretion resulting, in turn, in an arbitrary punishment. 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