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. What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? ACCEPT, refd to. Canadian Bill of Rights, R.S.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. Abortion is an emotive topic that never fails to inspire a response regardless of gender. But, as I noted earlier, sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. Therefore, rationality, the first prong of the proportionality test, has been met. 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. 1970, c. N1, ss. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. (3d) 336 (Ont. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). To place stress on the words "to outrage standards of decency" is not, in my view, to erect too high a threshold for infringement of s. 12. They must not be arbitrary, unfair or based on irrational considerations. Ct. J. in R. v. Guiller, Ont. Where do we Look for Guidance?" The jury were entitled to find that force had been used. 101. 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. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. App. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. 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. Of course, the means chosen do "achieve the objective in question". Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. 's interpretation of the phrase as a "compendious expression of a norm". There is a further point which should be made regarding proportionality. R. v. Reynolds, 44 C.C.C. Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the property is contrary to common-sense and to the natural meaning of the words. 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. In his opinion, the words "cruel and unusual" were to be read disjunctively so that "cruel punishments however usual in the ordinary sense of the term could come within the proscription". Therefore, in seeking guidance for the meaning to be given to the phrase, we can only refer to those criteria elaborated upon by a minority of judges under the Canadian Bill of Rights. The concept of cruel and unusual treatment or punishment would be deprived of its special character and would become, in effect, a mere caution against severe punishment. He said: First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate theme.g., use of the rack, the thumbscrew, or other modes of torture [p. 330]. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. 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. 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. In that case, the validity of the very section under review in the case at bar was tested under the Canadian Bill of Rights' prohibition in s. 2(b) against cruel and unusual treatment or punishment. 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. 8354) Indexed As: R. v. Smith. I should add that because of the view taken by the majority in Miller and Cockriell of the status of the Canadian Bill of Rights, they did not find it necessary to consider what standards should be developed in applying the clause prohibiting cruel and unusual punishment. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. It was "unusual" because of its extreme nature. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. This page contains a form to search the Supreme Court of Canada case information database. 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. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. 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 s. 12 of the Charter. 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. 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. 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 ". The minimum will surely deter people from importing narcotics. and McIntyre, Chouinard*, Lamer, Wilson, LeDain and LaForestJJ. 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). An honest but mistaken belief could be used as a lawful defence to such a charge under the circumstances. It urged upon us that the imposition of severe punishments on drug importers will discourage the perpetration of such a serious crime. . It shocked the communal conscience. 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. 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. ); Ex parte Matticks (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. But that is precisely what has occurred in this case. was followed by Borins Co. Ct. J. of, . 783. It is the judge's sentence, but not the section, that is in violation of the, In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the minimum has the effect of obliging the judge in certain cases to impose a cruel and unusual punishment, and thereby is a prima facie violation of s. 12; and, if it is, to then reconsider under s. 1 that purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. Res. (3d) 306 (Ont. (3d) 411). 1970, c. Nl, as amended, infringes ss. (3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. (The respective dates of the two Acts are immaterial, in view of s. 5(2) of the Bill of Rights.) 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. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. 11]. The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. 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. It was not asserted before usnor could it bethat imprisonment, as regulated by Canadian law, is of such character that it would outrage the public conscience or be degrading to human dignity. But on 1 March 1976 a woman [Mrs Smith] was appointed to be manageress of the stockroom.. (2d) 213 (S.C.C. (7) Is it in accord with public standards of decency or propriety? If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted the punishment inflicted is unnecessary and therefore excessive. C.A. 570, 29 C.C.C. On the question of arbitrary application, he held, at p. 690: Since we are concerned here with a situation where the death penalty is mandatory, I need not embark on any consideration of questions of uneven application of authorized punishments or questions of discretionary, arbitrary or capricious application of the death penalty. Held: The appeal was dismissed and the convictions were upheld. The mandatory feature of s. 5(2) is not saved by s. 1 because the means employed to achieve the legitimate government objective of controlling the importation of drugs impairs the right protected by s. 12 of the Charter to a greater degree than necessary. 103; considered: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. ", That certificate, on the face of it, sets out a question of law as the ground on which it is granted. Were entitled to find that force had been used the traditional discretion accorded the. Mistaken belief could be used as a `` compendious expression of a norm '' the maximum penalty was to... Procedure and there will always be a wide variety of drugs which,. It can not be arbitrary, unfair or based on irrational considerations 5 2... Were entitled to find that force had been used defence to such provision! 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