European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1970, App. Applied: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 2930. As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under s. 12 of the Charter, does not appear to arise on the facts of the case. & M. sess. He rejected the suggestion that the Court should consider whether the punishment was acceptable to a large segment of Canadian society because this appeared to be asking the Court to define cruel and unusual punishment by a "statistical measure of approval or disapproval", an avenue of inquiry on which the Court should not embark (p. 692). 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. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. A claim which was eventually rejected. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. The final principle proposed, at p. 279: is that severe punishment must not be excessive. ); R. v. Morrison, supra). 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. 1970-1972, RM-0000, USS Sarsfield (DD-837) Service Years 1968 - 1974 1974 Horne, Alan, MM3 NEC MM-0000-Machinist's Mate Status USN Veteran Primary Unit 1971-1974, MM-0000, USS Spiegel Grove (LSD-32) Service Years 1970 - 1974 1974 Rivera Colon, Angel Rafael, AKAA NEC AK-0000-Aviation Storekeeper Status USN Veteran Primary Unit However, be that as it may, the courts have shown some lingering reluctance to interfere with the wisdom of Parliament in enacting the laws that are challenged. A sevenyear sentence for drug importation is not. & M. sess. Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. After pleading guilty before Wetmore Co. Ct.J., the accused challenged the constitutional validity of the sevenyear minimum sentence found in s. 5(2) of the, . FREE courses, content, and other exciting giveaways. 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. R. v. Smith, [1987] 1 S.C.R. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. , G.A. 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. 217 A (III), U.N. Doc A/810, at 71 (1948), art. It appears to me that his conclusion rests upon the potential disproportionality of the mandatory sentence when considering the range of offences, the variety of ways the offence may be committed, and the great disparity of the sentence with that imposed on others who have committed offences identical in gravity and nature. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. (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. These criteria are very usefully synthesized in an article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel and Unusual Treatment or Punishment? 129, refd to. The Appellant's defence was that he honestly believed that the damage he did was to his own property, that he believed that he was entitled to damage his own property and therefore he had a lawful excuse for his actions causing the damage. 486. ), pp. This case, the obvious inspiration for Boston Legal episode Roe v Wade: The Musical, raises two important points: firstly a man deceived into creating a baby still has financial obligations to that child irrespective of deception and secondly even if deception is involved a father still has no right to be consulted in whether the pregnancy is terminated or not. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. What is unconstitutional for one must be unconstitutional for all when charged with the same offence. [para. III, s. 2(a), (b). Yet, there is a law in Canada, s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. C34, ss. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. 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. C.A. With the landlords permission, he installed some sound equipment and soundproofing material. (1978), 10. , was heard in this Court, the majority (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpr JJ.) Their cultivation is also prohibited. Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. 7, 9 and 12 thereof? The courts, the Charter so commands, must examine challenged legislation in order to determine whether it infringes a right protected by the Charter. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). 103. 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. and concluded that the section did not impose cruel and unusual punishment. 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. Ct. J. in R. v. Guiller, Ont. Ct.), and Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. The Steven John Smith jointly charged is the Appellant's brother. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. I should add that, in my view, the minimum sentence also creates some problems. 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 Char ter. Today the only way [counsel for Mr Paton] can put the case is that the husband has a right to have a say in the destiny of the child he has conceived. Q.B. Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. In particular, it inserts into the system a reluctance to convict and thus results in acquittals for picayune reasons of accused who do not deserve a sevenyear sentence, and it gives the Crown an unfair advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or included offence. Abandoning the debate as to whether "cruel and unusual" should be read disjunctively or conjunctively, most courts have clearly taken the Laskin approach as set out in Miller and Cockriell and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. (1978), 10. ) 16970; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the Canadian Bill of Rights by a narrow construction of what is a quasiconstitutional document. 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. 1970, c. N1 is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective. 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. 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. In my view, this is not a sound approach to the application of s. 12. Criminal Code, R.S.C. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. 152, 68 C.C.C. The question of law in this appeal arises in this way. I know of no reported instances where the courts invoked that part of s.10 of the English, Experience in other countries regarding the, ), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (, It was not until fifteen years after the enactment of the, The Court of Appeal for British Columbia decided, in. ); R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. 7. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. 2200 A (XXI), 21 U.N. GAOR, Supp. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the, 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. Per 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. 15 See R v Hawke, (1974) 2 OR (2d) 210 (ONHCJ); R v MacLean, [1975] BCJ No 1017, 27 CCC (2d) 57 (BCCC); R v Smith, [1974] BCJ No 776, 22 CCC (2d) 268 (BCSC). (3d) 411). 62]. The Charter provision in s. 12 is the device by which the parliamentary discretion as to punishment was to be constitutionally limited. In other words, the appellant is arguing that legislation which restrains the discretion of the trial judge to weigh and consider the circumstances of the offender and the circumstances of the offence in determining the length of sentence is arbitrary and, therefore, cruel and unusual. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. In-house law team, Damage to property mistake Criminal Damage Act 1971. However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. ), 1 Wm. 1970, c. Nl, as amended, infringes ss. If section 7 were found to impose greater restrictions on punishment than s. 12for example by prohibiting punishments which were merely excessiveit would entirely subsume s. 12 and render it otiose. R. v. Wong (1978), 41 C.C.C. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. Topics. In the present appeal, the Crown had but one argument. R. v. Reynolds (1978), 44 C.C.C. ), refd to. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Criminal Code of Canada, R.S.C. 7. 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. 's statement of the test for cruel and unusual punishment under, The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the, 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. Section 1 of the Criminal Appeal Act 1968, (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.". 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. 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. 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. Maximum penalties for trafficking, possession for the purpose of trafficking, and importation were all increased to life imprisonment. 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. R v Pittwood (1902), R v Smith (1869) (2d) 86; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. If section 12 were to be construed to permit a trial judge to ameliorate a sentence mandated by Parliament simply because he considered it to be too severe, then the whole parliamentary role with regard to punishment for criminal conduct would become subject to discretionary judicial review. It is not the intention of this piece to address the correctness of the tabled amendment nor is it the intention of this piece to discuss the rights or wrongs of abortion. 2.I or your money backCheck out our premium contract notes! Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. 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, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the Narcotic Control Act was cruel and unusual. 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