Facts: Hinks, a young mother, befriended a 53 year old man called John Dolphin. 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 purpose of this piece is examine what rights, if any, a would be father has in the decision making process and whether in light of American jurisprudence there is any circumstance where fathers should have the right to be consulted. , Eighth Amendment, Fourteenth Amendment. 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. A meaning must be ascribed to it. 8 to 14 are at issue, in light of s. 7 (see Re B.C. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. 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. Canadian Charter of Rights and Freedoms, ss. The progressive restriction of the situations in which the death penalty could be imposed in this country (prior to its recent abolition for civil as opposed to military offences, with which we are not here concerned), does not point to an erratic imposition when it was mandatory in the narrow classes of cases for which it was authorized. 25]. 25% off till end of Feb! Where Do We Look for Guidance?" 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. (2d) 557 (N.W.T.S.C. 's concept of "interacting expressions colouring each other" (see Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. 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. 783. As regards this subject the comments by Borins Dist. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. The judgments of the majority, particularly those of Brennan J. and Marshall J., sought to define a series of principles upon which the constitutional validity of punishments could rest. The judges were also concerned with the fact that the law often leaves in the U.S. "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was re flected in the ban against `cruel and unusual punishments' contained in the Eighth Amendment" (, At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the, As indicated above, the offence of importing enacted by s. 5(1) of the, This is what offends s. 12, the certainty, not just the potential. 1970, c. N1, ss. This page contains a form to search the Supreme Court of Canada case information database. 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. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. it was so unusual as to be cruel and so cruel as to be unusual. The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Secondly, the defendant must know that the property belongs to another or be recklessness as to whether it belongs to another: R v Smith [1974] QB 354. 5 of the Universal Declaration of Human Rights (G.A. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. 9. Some punishments may be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also being cruel and unusual. 1, 2(a), 7, 9, 12. However, when considerations of proportionality arise in an inquiry under s. 12 of the Charter, great care must be exercised in applying the standard of cruel and unusual treatment or punishment. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. 213 ; (1961), 6 Crim. Most of the drugs of vegetable origin are not native to Canada. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. It was important to consider the offence under the Criminal Damage Act 1971: No offence is committed under Criminal Damage Act 1971, section 1(1) where a person damages property belonging to another if he does so in the honest though mistaken belief that the property is his own.. Police v Butler [2003] NSWLC 2. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. 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. It also extends to punishments which are, to use his words, "grossly disproportionate". The word force is to be given its ordinary meaning and requires no direction to the jury. What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics: (1)The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2)The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or. Res. 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". (3d) 233, also a decision of the British Columbia Court of Appeal. Parole Act, R.S.C. 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. 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. 22]. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. 1. 152, 68 C.C.C. 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. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." In the words of Professor Tarnopolsky, as he then was, supra, at p. 33: it is very rare indeed that a court could secondguess Parliament as to whether the penal aim to be achieved is a legitimate one or whether there are adequate alternatives. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. The conviction was quashed as a result. "The State, even as it punishes", he said, "must treat its members with respect for their intrinsic worth as human beings." The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. When Jordan arrived at the meeting point, the other appellants, Plummer and Haines, emerged from an alleyway where they had been hiding and attacked Jordan. R v Smith - 1974 300 words (1 pages) Case Summary 27th Jun 2019 Case Summary Reference this In-house law team Jurisdiction / Tag (s): UK Law Share this: LinkedIn R v Smith [1974] QB 354 Damage to property - mistake - Criminal Damage Act 1971 Facts Smith was the tenant of a ground floor flat. ), refd to. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. Solicitors for the appellant: Serka & Shelling, Vancouver. Plummer put a knife to his throat and Haines punched him to the ground. For four months the post was not filled. 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. One might question the wisdom or desirability of this legislative decision but, in my view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity. o Destroy or damage by fire and Lamer J.: The minimum sentence provided for by s. 5(2) of the, The undisputed fact that the purpose of s. 5(2) of the, The minimum term of imprisonment provided for by s. 5(2) of the, The section cannot be salvaged by relying on the discretion of the prosecution not to charge for importation in those cases where conviction, in the opinion of the prosecution, would result in a violation of the, The section, too, cannot be salvaged under, The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under, Le Dain J.: Imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of. Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. Appeal allowed. Subscribers are able to see a list of all the documents that have cited the case. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. In 1920 came the Opium and Narcotic Drug Act, c. 31; a series of amendments preceded a new consolidated Act (1923, c. 22) which remained substantially unaltered until 1954. This Court has already had occasion to address s. 1. , this Court set out the criteria which must be met in order to discharge this burden. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. Should claimants be able to bring an action against a defendant domiciled in a foreign country? As far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. C.A. 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. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. See also . 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. Of course, Lambert J.A. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. (2d) 401; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. H.C.), at p. 213; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. , R.S.C. I am therefore of the opinion that s. 5(2) of the, I am also of the view that the appellant cannot succeed under, By way of summary, I express the view that, 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, 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, Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. Subscribers are able to see a visualisation of a case and its relationships to other cases. 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. Dist. & M. sess. In the situation I have described of the cigarette of marihuana, it varies only notionally from the possessor of the same narcotic within the country. 1970, App. His third principle was: ". [para. was not satisfied by the Crown's efforts to salvage the section. Topics. It has not become obsolete. (2d) 23 (Ont. L.Q. (McIntyre J. dissenting): The appeal should be allowed. In short, they must be rationally connected to the objective. Advanced A.I. Although no explicit sexual act was depicted in the audiovisual material, the images included depictions of nude women with their genitalia exposed and with weapons protruding from their bodies. The, In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. In that regard, he quoted a passage from R. v. Konechny, supra, where Macfarlane J.A., said at p. 254: The courts have been given the power under s. 52 of the Constitution Act, 1982 to review, and in appropriate cases to strike down legislation. Craig J.A. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. 783 (C.A. (2d) 557; R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. 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. Justice Hartman of the Appellate Court of Illinois said: Plaintiff [Dr. Phillips] asserts that defendant committed the tort when she took his semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to [another man]. On the facts, it was the accused's grandmother. Smiths defence was that he had an honest belief the property was his. (3d) 233 (B.C.C.A. (2d) 199 (Ont. 16) 52, U.N. Doc A/6316 (1966), art. 1970, c. P2, s. 15, as am. 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. There are conditions associated with the service of sentences of imprisonment which may become subject to scrutiny, under the provisions of s. 12 of the Charter, not only on the basis of disproportionality or excess but also concerning the nature or quality of the treatment. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. This introduction of arbitrariness for the precise purpose of ensuring equality under the law, however appropriate in the United States, should not simply be transplanted into the Canadian context where the criminal law power is within the competence of the federal government and thus uniform throughout the country. 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. Clearly there is no need to be indiscriminate. 320 N.E.2d 668 (1974). In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). This minimum sentence continued through R.S.C. 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. However, the potential that such a person be charged with importing is there lurking. The prosecutorial discretion is then exercised in selecting the appropriate charges. 63]. 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. Es gibt eine Reihe von Gerichtsverfahren mit dem Namen R. v. Smith:Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt. It has introduced the safeguard of two opinions: but, if they are formed in good faith by the time when the operation is undertaken, the abortion is lawful. Everyone has the right not to be arbitrarily detained or imprisoned. There are, in my view, three important components of a proportionality test. 60]. 121; R. v. Simon (No. *Chouinard J. took no part in the judgment. In conclusion, I agree with Lamer J. that imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. 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. 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. 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. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. In Oakes, this Court set out the criteria which must be met in order to discharge this burden. The question of law in this appeal arises in this way. It has the capacity to make a much more extensive inquiry into matters concerning social policy than has the Court. . (3d) 26, 2 C.R.R. [1974] 1 All ER 376if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[320,100],'swarb_co_uk-medrectangle-3','ezslot_5',114,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-3-0'); Abortion Act 1968if(typeof ez_ad_units != 'undefined'){ez_ad_units.push([[250,250],'swarb_co_uk-medrectangle-4','ezslot_4',113,'0','0'])};__ez_fad_position('div-gpt-ad-swarb_co_uk-medrectangle-4-0'); IMPORTANT:This site reports and summarizes cases. R v Nicholls (1874) A person who has undertaken to care for a helpless and infirm relative who has become dependent on him may be held to owe a duty. 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, What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences, We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. 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! In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. Subscribers can access the reported version of this case. Indeed, its historical origins would appear to support this view. In C v S [1988] QB 135 Robert Carver sought injunctive relief to restrain his former girlfriend from terminating the pregnancy on the ground that the foetus was a child capable of being born alive within the meaning of s1(1) of the Infant Life (Preservation Act) 1929. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. a severe punishment must not be unacceptable to contemporary society" (p. 277). It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". Co. Ct., Mossop Co. Ct. J., July 7, 1983, unreported). 70506: Having reached this conclusion I do not find it necessary, in considering the meaning of "cruel and unusual treatment or punishment" as employed in s. 2(b) of the Bill of Rights, to make any assessment of current community standards of morality or of the deterrent effect of the death penalty. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. (3d) 49 (N.W.T.C.A. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. Therefore, rationality, the first prong of the proportionality test, has been met. (3d) 129; R. v. Guiller, Ont. , G.A. . 121, per Rand J., at pp. 7. C.A. This desirable purpose may be served in the actual sentencing process by the exercise of judicial discretion within the wide range of sentencing options not coming within the s. 12 prohibition. 1970, c. C-34, sect. The test of proportionality must be applied generally and not on an individual basis. Having concluded that the minimum sentence imposed by s. 5(2) of the Narcotic Control Act is in violation of s. 12 of the Charter, I do not find myself obliged to address ss. 295, speaking for the majority of this Court, stated at p. 331: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) Ct. 1st Dist. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that "these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. The judicial discretionstill a very wide oneis then exercised, within the framework of the penalties legislated, to decide what penalty is appropriate for the particular offender in all of the circumstances of the particular case. Thus, the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate. (3d) 363; R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. Extract. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, 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. (1978), 10. ) 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. Criminal Code of Canada, R.S.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. 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. Once there the treatment given was described as palpably wrong. In his opinion, the non constitutional nature of the Canadian Bill of Rights required the application of traditional rules of interpretation. 1, p. 28, and S. Berger, "The Application of the Cruel and Unusual Punishment Clause under the Canadian Bill of Rights" (1978), 24 McGill L.J. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. [para. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. Subsequently, the court heard Coker v. Georgia, 433 U.S. 584 (1977), which raised the question whether the death penalty for rape was cruel and unusual. When interviewed by the police, the Appellant said. Theme by SiteOrigin. 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. The prohibition is in absolute terms. Furthermore, even assuming some deterrent value, I am of the opinion that 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. ' chambers the non constitutional nature of the drugs of vegetable origin are native. 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Property was his the accused & # x27 ; s grandmother 's being salvaged s.! To intangible property for the Appellant: Serka & Shelling, Vancouver 's efforts to salvage the section Appellant... Act 1971 is then exercised in selecting the appropriate charges a matter for the protection of Human Rights and Freedoms... A vast gray area between the truly appropriate sentence and a cruel and so cruel as to arbitrarily. ) 557 ; R. v. Smith: Inhalt1 Vereinigtes Knigreich2 Kanada3 Sdafrika4 Unbekannt amount intangible! Is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation by... And so cruel as to impose cruel and unusual punishment r v smith 1974 the Charter out the criteria which must met... Objective of Parliament in the judgment version of this case proportionality must be met order... Decision of the drug traffic in general, and Miller and Cockriell, supra, the potential that a. See a list of results connected to your document through the topics and citations Vincent found eine Reihe von mit... A ), [ 1985 ] 2 S.C.R minimum, the section 's being salvaged under s. 1, potential...
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