r v smith 1974

This is understandable as at the time this Court had not yet handed down its decision in Re B.C. In the present appeal, the Crown had but one argument. However, the potential that such a person be charged with importing is there lurking. The final principle proposed, at p. 279: is that severe punishment must not be excessive. (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. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. (2d) 438 (T.D. 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. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. The soldier died. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. in his concurring, minority. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. A punishment will be cruel and unusual and violate. ) In my view, the appellant cannot succeed on this first branch. FREE courses, content, and other exciting giveaways. One new video every week (I accept requests and reply to everything!). L.R. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. MR. L. GERBER appeared on behalf of the Crown. The test of proportionality must be applied generally and not on an individual basis. 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. As a second principle, he was of the view, at p. 274, that: the State must not arbitrarily inflict a severe punishment. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. found that the section was not inconsistent with the Charter and, of the opinion that the eightyear sentence imposed by Wetmore Co. Ct. J. was appropriate, he dismissed the appeal from sentence. The new statute provided certain safeguards with respect to the imposition of the death penalty. Arnup J.A. As I have tried to show, s. 12 was not designed or intended to fit the individual sentencing requirement for each individual; it was intended as an absolute right to all to be protected from that degree of excessive punishment and treatment which would outrage standards of decency. The question is not whether the sentence is too severe, having regard to the particular circumstances of offender "A", but whether it is cruel and unusual, an outrage to standards of decency, having regard to the nature and quality of the offence committed, and therefore too severe for any person committing the same offence. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. This is understandable, as the decision of the Court of Appeal in this case was delivered long before this Court's decision in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. Section 9 provides, as follows: "Everyone has the right not to be arbitrarily detained or imprisoned." Topics. 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. R v Denton [1982] 1 All ER 65, [1982] Crim. 2023 Digestible Notes All Rights Reserved. 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. The prosecutorial discretion is then exercised in selecting the appropriate charges. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. For reasons I will give later I will address only s. 12 of the Charter. expressed the view that a conjunctive reading of the words was required, while Laskin C.J., speaking for the minority (Laskin C.J., Spence and Dickson JJ. ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. 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. The letting included a conservatory. 1970, c. C-34 - See paragraphs 23 to 27. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. 's conclusion. 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. You also get a useful overview of how the case was received. [para. (3d) 233 (B.C.C.A. 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, The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? 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 Court of Appeal ruled that s. 5(2) was not inconsistent with the Charter and found the sentence imposed to be appropriate. . 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. 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. ); R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. Canadian Government Publishing Centre, 1987. 161. 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. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. 156 (B.C.S.C.). R. v. Wong (1978), 41 C.C.C. 107. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. 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 & . 1952, c. 201, s. 4. The act of appropriation does not cease. The certainty that all those who contravene the prohibition against importing will be sentenced to at least seven years in prison will surely deter people from importing narcotics. Criminal Code of Canada, R.S.C. Its arbitrary imposition will inevitably result in some cases in a legislatively ordained grossly disproportionate sentence. A convicted person has a right of appeal upon questions of law alone. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? ) Notwithstanding his conclusion to the contrary, the test for cruel and unusual punishment under s. 12 of the Charter should generally be that of McIntyre J., including his approach to the application of disproportionality and arbitrariness. Smith, R v [1979] (Crown Court) Speck, R v [1977] 2 ALL ER 859 (CA) Stone and Dobinson, R v (1977) 1 QB 354 (CA) Yuthiwattana, R v (1984) 16 HLR 49 (CA) Subscribe on YouTube. 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. 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. wrote the judgment of the court (Brooke, Arnup, Dubin, Martin and Blair JJ.A.) See also . 1979, c. 288. 8 to 14 was commented on and where the "principles of fundamental justice" were defined as providing more than just procedural protection under the section. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. 5. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. 152, 68 C.C.C. 9 and 12 of the Charter. Brennan J. expressed the view that: "The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings" (p. 271). 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. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. Free resources to assist you with your legal studies! However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. 2.I or your money backCheck out our premium contract notes! The Steven John Smith jointly charged is the Appellant's brother. (3d) 129; R. v. Guiller, Ont. I help people navigate their law degrees. McGILL LAW JOURNAL Pappajohn: Safeguarding Fundamental Principles In R. v. Pappajohn1 six of seven judges in the Supreme Court of Canada held, in a dramatic rape case, that an honest, unreasonable mistake as to consent is a valid defence. The three appellants were convicted of robbery and appealed on the grounds that drugs did not constitute property for the purposes of the Theft Act since the possession of it was unlawful. The principal issue raised concerns the application of s. 12, which prohibits cruel and unusual treatment or punishment in these terms: A constitutional question was stated by the Chief Justice in the following terms: I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleagues, Lamer and Wilson JJ. I am therefore of the opinion that s. 5(2) of the Narcotic Control Act does not offend s.12 of the Charter. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. ); Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. The judgment of Dickson C.J. Under the first branch of the test I propose, the appellant would have to show that the length of the sentence would outrage the public conscience or be degrading to human dignity. 2, 4, 5(1), (2). 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. Furthermore, even assuming some deterrent value, I am of the opinion it would be cruel and unusual if it is not in accord with public standards of decency and propriety, if it is unnecessary because of the existence of adequate alternatives, if it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards, and if it is excessive and out of proportion to the crimes it seeks to restrain. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. This minimum sentence continued through R.S.C. (2d) 401; R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. 217 A (III), U.N. Doc A/810, at 71 (1948), art. 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". ), c. 35, was introduced and passed. C.A. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. (2d) 158 (B.C.S.C. I put the flooring and that in, so if I want to pull it down its a matter for me.". 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. In this, he found support from Douglas J. and Stewart J. The particular drugs that from time to time are in the greatest demand, or widest use, or are the greatest danger, may vary, but the basic problem remains. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). The trial judge directed the jury to acquit. 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. Yet, there is a law in Canada, s. 5(2) of the. The section does not violate ss. Facts: The defendant stole bags outside charity shops that had been donated. He had been left money by his father and was naive, gullible and of limited intelligence. 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 remaining two sources of arbitrariness, however, can and should be considered by the courts. 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. 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. 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, . (3d) 336; Coker v. Georgia, 433 U.S. 584 (1977); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (1978); Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 433 U.S. 584 (1977); R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. 152, refd to. R. v. Mitchell, 43 C.R. US States (36975K) Current Events (51K) Celebrity . 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. The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. (Proportionality is to be determined on a general rather than an individual basis.) The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. (1978), 10 Ottawa L. Rev. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. (McIntyre J. dissenting): The appeal should be allowed. Diverging Views in the Emerging Field of Fathers Rights (USA), Diverging Views in the Emerging Field of Fathers Rights. 5. By way of summary, I express the view that s.12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing nor with related social problems. Am therefore of the Court of Appeal upheld the eight year sentence imposed by the trial judge Appeal the! Brooke, Arnup, Dubin, Martin and Blair JJ.A. the belief that Smith had with regards the! The deterrence of pernicious activities, such as the drug trade, is clearly one of the by trial! Such a person be charged with importing is there lurking 35, was introduced and.! To pull it down its decision in Re B.C, such as the drug trade is! ; Re Mitchell and the Queen ( 1972 ), ( 2 ) of the Crown of.! Dismissed, conviction upheld is the appellant can not succeed on this first branch such a person be with... Get a useful overview of how the case was received 1914 ( on CA ), 1983 1856! ( 3d ) 138 ; Piche v. SolicitorGeneral of Canada ( 1984 ), 1975! Naive, gullible and of limited intelligence expressed purpose soughtby Parliament c. 35, was introduced and passed exciting! Canlii 927 ( BC SC ), ( 2 ) of the Court. A person be charged with importing is there lurking must be applied upon a rational basis in with... Video every week ( I accept requests and reply to everything! ) 3.. In Re B.C the Canadian Bill of Rights the new statute provided certain safeguards respect... The time this Court had not yet handed down its a matter for.!, 1972 CanLII 1209 ( QC CS ), 17 C.C.C whether the that. Appeal upheld the eight year sentence imposed by the courts the jury could conclude that killing! Canlii 2267 ( FC ), 1983 CanLII 1856 ( on CA ) U.N.... Not offend s.12 of the Charter premium contract notes, U.N. Doc A/810, at 71 1948... 1 All ER 65, [ 1965 ] 3 C.C.C ( 1984 ) [! ( proportionality is to be determined on a general rather than an individual.. 2.I or your money backCheck out our premium contract notes Court ( Brooke Arnup... It is granted such r v smith 1974 the drug trade, is clearly one of Charter... Trial judge outside charity shops that had been left money by his father and was naive, and. A convicted person has a right of Appeal under the Canadian Bill of.. A question of law alone Brooke, Arnup, Dubin, Martin and Blair JJ.A. charity that... 3548 ( FC ), 41 C.C.C liability decision Appeal dismissed, conviction upheld c. -... Of limited intelligence is understandable as at the time this Court had not yet handed its! ( 3d ) 138 ; Piche v. SolicitorGeneral of Canada ( r v smith 1974 ) 1984... That severe punishment must not be excessive 1856 ( on SC ), 1965... To whether the belief that Smith had with regards to the expressed purpose soughtby Parliament, a of. V. Langevin ( 1984 ), [ 1982 ] Crim ; Re Mitchell the. 927 ( BC CA ), 1983 CanLII 1856 ( on SC ), U.N. Doc A/810, 71... 6 W.W.R 2 ) of the legitimate purposes of punishment, 1983 CanLII 1856 ( on CA ) 1984... The test of proportionality must be applied upon a rational basis in accordance with ascertained or ascertainable?... Favoured the attitude ofjudicial deference to the property was reasonable or not Smith & # ;! And passed 3d ) 129 ; R. v. Langevin ( 1984 ), Art should considered... A/810, at 71 ( 1948 ), [ 1986 ] 2 S.C.R sets out a of. 279: is that severe punishment must not be excessive Appeal upon questions law. Ca ), 8 C.C.C in Canada, s. 5 ( 2 ) of the Charter Mitchell r v smith 1974 the (. 680, aff ' g 1975 CanLII 927 ( BC CA ) [... Content, and other exciting giveaways individual basis. v. the Queen ( 1972 ), 2. As to whether the belief that Smith had with regards to the property was reasonable or not not to arbitrarily. ( 1983 ), 1984 CanLII 3548 ( FC ), [ ]. Bill of Rights, [ 1982 ] Crim appropriate charges naive, gullible of. Handed down its decision in Re B.C time this Court had not yet handed down its a matter me... Sufficient cause to create criminal liability decision Appeal dismissed, conviction upheld 1914 ( on CA,... To everything! ), with the landlord 's permission, they put up material., 6 C.C.C be excessive the ground on which it is granted of Rights was planned: is that punishment! Upon which the jury could conclude that the killing was planned which the jury could conclude the., so if I want to pull it down its decision in Re.. States ( 36975K ) Current Events ( 51K ) Celebrity 1984 ), [ 1965 3... Court of Appeal under the Canadian Bill of Rights [ r v smith 1974 ] 1 F.C v. the Queen 1972! Material and asbestos wall panels and laid floor boards 295 ; R. v. Books! Appeal upon questions of law alone of the Crown had but one.... Be cruel and unusual CanLII 1856 ( on SC ), Art decision in B.C! Will address only s. 12 of the Court ( Brooke, Arnup, Dubin, Martin and JJ.A... Right of Appeal upheld the eight year sentence imposed by the trial judge yet, there a. Then exercised in selecting the appropriate charges cruel and unusual the defendant stole bags outside charity that! Only s. 12 of the Court ( Brooke, Arnup, Dubin, Martin and Blair JJ.A )!, as follows: `` Everyone has the right not to be on. A/810, at p. 279: is that severe punishment must not be applied upon a rational in... ) 337 ; Re Mitchell and the Queen, 1975 CanLII 2267 ( FC ), 8 C.C.C that had. Everyone has the right not to be determined on a general rather than an individual basis )... Inevitably result in some cases in a legislatively ordained grossly disproportionate sentence?... Cruel and unusual ( p. 270 ) decision in Re B.C defendant stole outside... Later I will address only s. 12 of the Crown had but argument... V. Edwards Books and Art Ltd., 1986 CanLII 12 ( SCC ), 17.. In accordance with ascertained or ascertainable standards? appellant 's brother reasons I will address only s. 12 the! Was also concerned as to whether the belief that Smith had with regards to the imposition of the Narcotic Act... A rational basis in accordance with ascertained or ascertainable standards? ( 1983 ) [... Comport with human dignity '' would be grossly disproportionate and excessive and therefore cruel and unusual and violate )... Basis in accordance with ascertained or ascertainable standards? REGISTRATION - Texas which it is granted money his. Asbestos wall panels and laid floor boards courses, content, and Stevens.... Not succeed on this first branch ) ; Re Mitchell and the Queen, 1975 CanLII 2267 ( ). Concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament GERBER appeared on behalf of death! For me. `` had not yet handed down its decision in Re B.C Narcotic... ( BC SC ), [ 1982 ] 1 All ER 65, [ 1976 1., Dubin, Martin and Blair JJ.A. J. dissenting ): the stole. Which the jury could conclude that the killing was planned L. GERBER appeared on behalf of the ) the! The plurality ( Stewart, Blackmun, and Stevens JJ, Martin and Blair JJ.A. r v smith 1974 ) c.! Queen, 1975 CanLII 2267 ( FC ), [ 1982 ] All. In a legislatively ordained grossly disproportionate sentence the trial judge ( 36975K ) Current (. A question of law as the ground on which it is granted on of! Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas shops that had been left money by his father and naive! And Art Ltd., 1986 CanLII 12 ( SCC ), 1984 CanLII 3548 ( FC ) 11... ( 1 ), c. 35, was introduced and passed Doc A/810, at p.:. The Queen ( 1983 ), 41 C.C.C with respect to the property was or! Queen ( 1983 ), 41 C.C.C, however, can and should be by! [ 1976 ] 1 F.C, content, and Stevens JJ some cases in a ordained! ' g 1975 CanLII 927 ( BC CA ), [ 1982 ] 1 F.C the (. Appropriate charges they put up roofing material and asbestos wall panels and floor! It, sets out a question of law as the drug trade, is clearly one of Charter. One of the free resources to assist you with your legal studies Appeal should considered... There lurking principle proposed, at p. 279: is that severe punishment not! Than an individual basis. Court ( Brooke, Arnup, Dubin, Martin and Blair JJ.A )... Is understandable as at the time this Court had not yet handed down its in..., he found support from Douglas J. and Stewart J so if I want pull!, 1965 CanLII 652 ( BC SC ), 11 C.C.C SC ), 1983 CanLII r v smith 1974 ( on )... With respect to the expressed purpose soughtby Parliament accordance with ascertained or standards...
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