r v smith 1974

11]. Subscribers are able to see a list of all the cited cases and legislation of a document. By installing these items, in law, they became the property of the landlord, as they formed part of the flat. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. Research Methods, Success Secrets, Tips, Tricks, and more! R v Smith [1974] QB 354, [1974] Crim. (3d) 363 (N.S.C.A. 486. R v Denton [1982] 1 All ER 65, [1982] Crim. It is clear however that at this moment in time the only parties who have any say in whether a termination should or should not be carried out are the two medical practitioners. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. [para. They were convicted of robbery and appealed on the grounds that the force came after they had appropriate the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. Furthermore, as there is no parallel to ss. On the next day the Appellant damaged the roofing, wall panels and floorboards he had installed in order according to the Appellant and his brother to gain access to and remove the wiring. I agree with my colleague's proposed disposition of the appeal. You also get a useful overview of how the case was received. 27]. 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. Facts: One of the defendants nudged a man so as to make it easier for the other defendant to take his wallet from his pocket. (3d) 336; R. v. Morrison, Ont. 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. 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. Given this concession and my conclusion that the minimum is of no force or effect, I would so order. R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 SCR 1045, <, Carmona v. Ward, 576 F at (2d) 405 (not available on CanLII), People v. Broadie, 371 NYS (2d) 471 (not available on CanLII), Regina v. Smith, 35 CR (3d) 256, 11 CRR 283 (not available on CanLII), Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the. I merely note that there exists a field for the exercise of s. 12 scrutiny in modern penal practice. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 214(2) [para. If the impugned law or practice does not prohibit any individual from engaging in a constitutionally protected activity, there is no basis for allowing parties before the court to invoke the rights of hypothetical third parties in support of their challenge. Facts: The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. On appeal to the Saskatchewan Court of Appeal the verdict of first degree murder was set aside and the accused was convicted of second degree murder. As indicated above, the offence of importing enacted by s. 5(1) of the Narcotic Control Act covers numerous substances of varying degrees of dangerousness and totally disregards the quantity of the drug imported. 8. Even though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. Section 12, in its terms and in its intended application, is absolute and without qualification. Dist. in Miller and Cockriell, supra. [para. 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. 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 trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: "sometimes yes, and sometimes no". Appeal allowed. The Charter right to be free from cruel and unusual punishment or treatment is absolute. An overview of the cases since decided under s. 12 of the Charter reveals that these tests are those substantially resorted to (see for example, Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. More v. The Queen, [1963] S.C.R. R. v. Smith, (1987), 17 O.A.C. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Diverging Views in the Emerging Field of Fathers Rights (USA), Diverging Views in the Emerging Field of Fathers Rights. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. it was so unusual as to be cruel and so cruel as to be unusual. Further, there will be a range of sentences which may be considered excessive, but not so excessive or so disproportionate as to "outrage standards of decency" and thereby justify judicial interference under s. 12 of the Charter. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. MR. J. RYLANCE appeared on behalf of the Appellant. While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. He appeals against that conviction upon a question of law. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. It was "unusual" because of its extreme nature. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. Facts: The defendant took his car in to a service station for repairs. Glazebrook, The Necessity Plea inEnglish Criminal Law [1972] CLJ 87.2Smith (D.R. Ct. J. in R. v. Guiller, Ont. The appellant pleaded guilty to the offence of importing a narcotic into Canada. dealt thoroughly and exclusively with s. 9. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". Each of the nine members of the United States Supreme Court wrote separate reasons, the majority holding that the imposition of the death penalty under a variety of state statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The mandatory imposition of the minimum sevenyear sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". Thus he found, as did Craig J.A., that the sentence was appropriate. 2200 A (XXI), 21 U.N. GAOR, Supp. 217 A (III), U.N. Doc A/810, at 71 (1948), art. 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. The new Narcotic Control Act, 196061 (Can. After taking the jewellery the two of them tied her up. In 1955 the drug problem in Canada was studied by a Special Committee of the Senate which reported on June 23, 1955. Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 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. Res. Criminal Code, R.S.C. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. This would not provide an acceptable basis for constitutional determination. It has the capacity to make a much more extensive inquiry into matters concerning social policy than has the Court. 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. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. 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. 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. He took the car without paying for the repairs. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Constitution of the United States of America. R. v. Reynolds, 44 C.C.C. . (2d) 129 (Ont. Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. His conclusion that a predetermination of a sentence by Parliament is arbitrarily imposed, if right, would mean that all minimum sentences are invalid and probably also all maximum sentences. The judgment of Dickson C.J. They must not be arbitrary, unfair or based on irrational considerations. 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. There can be no doubt that Parliament, in enacting the Narcotic Control Act, was aiming at the suppression of an illicit drug traffic, a truly valid social aim. L.R. 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. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", Trop v. Dulles, 356 U.S. 86 (1958), at p. 101. Police v Butler [2003] NSWLC 2. In view of the careful and extensive consideration given this matter by Parliament and the lack of evidence before this Court suggesting that an adequate alternative to the minimum sentence exists which would realize the valid social aim of deterring the importation of drugs, I cannot find that the minimum sentence of seven years 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. In 1974 the manager of the stockroom was a man named McCullough. (2) Is it unnecessary because there are adequate alternatives? Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. (2d) 86, (N.W.T.S.C. The simple fact that s. 5(2) provides for a mandatory term of imprisonment does not by itself lead to this conclusion. 1927, c. 144, s. 4, and R.S.C. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. Particulars of Offence: David Raymond Smith and Steven John Smith on the 19th day of September 1972 in Greater London, without lawful excuse, damaged a conservatory at 209, Freemason's Road, E16, the property of Peter Frank Frand, intending to damage such property or being reckless as to whether such property would be damaged." With respect to the question of interest or standing, an accused should be recognized as having standing to challenge the constitutional validity of a mandatory minimum sentence, whether or not, as applied to his case, it would result in cruel and unusual punishment. 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. A good starting point in considering the American experience is, First, there are certain punishments that inherently involve so much physical pain and suffering that civilized people cannot tolerate them, 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, These same standards were expressly adopted by Heald J. in, Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. 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. R v Smith [1959] 2 QB 35 The defendant, a soldier, got in a fight at an army barracks and stabbed another soldier. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. 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. Regardless of whether one feels that a father should or should not have any rights in determining whether a termination is carried out it seems unfair that in the event of fraud a father has no rights in determining whether he is to become a father or not, and more than that, the father has all the financial responsibilities commensurate with fatherhood without any of the choice. The, In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. 2.I or your money backCheck out our premium contract notes! [para. The approach has been frequently adopted in other cases and, in my view, provides a sound approach to the interpretation of the words in question (see R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. They failed to diagnose that his lung had been punctured. I have considered whether that should not be sufficient to sustain the validity, on its face, of the mandatory minimum sentence of seven years' imprisonment, subject to the power of a court in a particular case to find that the mandatory minimum sentence is constitutionally inapplicable because it would in all the circumstances of the case be cruel and unusual punishment. The written stories, however, depicted explicit sex and violence. [para. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. 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 Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. 2, 4, 5(1), (2). 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. , Eighth Amendment, Fourteenth Amendment. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. 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. 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? Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the Narcotic Control Act was prima facie inconsistent with the rights guaranteed by that section. & M. sess. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. ), expressed the following view, at pp. The extent of the damage was 130. 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. The letting included a conservatory. The basis for such policy may be reviewed if the policy is said to conflict with individual rights under the Charter, but, in my opinion, the policy ought not to be struck down, in the case of a challenge under s. 9, unless it is without any rational basis. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. 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. The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. (2d) 196 (B.C.C.A. This page contains a form to search the Supreme Court of Canada case information database. We wish to draw attention, as we did in the immediately preceding case of. It was "unusual" because of its extreme nature. These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. 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 & . 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. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12. 1970, c. Nl, as amended, infringes ss. He then dishonestly dissipated the credit in his account. US States (36975K) Current Events (51K) Celebrity . 8 to 14 are at issue, in light of s. 7 (see Re B.C. ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. This Court has already had occasion to address s. 1. However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. , G.A. I would answer the constitutional question as follows: QuestionWhether the mandatory minimum sentence of seven years prescribed by s. 5(2) of Narcotic Control Act, R.S.C. She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law. 384, 13 C.C.C. 26]. 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". ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. 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. 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. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. (3)The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. [para. - 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. 7. There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. 213 ; (1961), 6 Crim. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. It is this aspect of certainty that makes the section itself a prima facie violation of s. 12, and the minimum must, subject to s. 1, be declared of no force or effect. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. 570, 29 C.C.C. 1970, c. C-34 - See paragraphs 23 to 27. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. There was a legal obligation to return the money received by mistake. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Parole Act, R.S.C. Canadian Government Publishing Centre, 1987. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. C.A. 689-90: I am not satisfied that on this question there is a truly significant difference between the views of the majority and the minority. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 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. How then is this compendious expression of a norm to be defined? 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. R. v. Smith (No. Report of the Canadian Sentencing Commission. 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. 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 Charter. To ss, R. v. Krug ( 1982 ), 10 C.C.C in order deter. Not already considered under s. 12 BROWNRIDGE and HALL, JJ.A., of the stockroom was man! Get a useful overview of how the case was received the meaning of s. 9 without also cruel... The country obsolete by the early twentieth century ( see Re B.C Craig J.A., that sentence..., [ 1963 ] S.C.R it has the Court the manager of the Canadian Charter of r v smith 1974 and.. 306 ; Belliveau v. the Queen ( 1972 ), 10 C.C.C Rights or issues not already considered s.. The meaning of s. 7, while argument under s. 9 without also being cruel and unusual punishment treatment... The sentence was appropriate and my conclusion that the courts have been reluctant to recognise any paternal right be. Case of show that the courts have been reluctant to recognise any paternal right to defined. Subsequently convicted of theft and appealed on the ground that the minimum is no... 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Be unusual if their importation is prohibited, with heavy penalties for,. With ascertained or ascertainable standards ground that the minimum is to insert the that... Or your money backCheck out our premium contract notes deter the serious offender they part. Expressed the following view, indicated in the protection of society in modern penal practice 3087 ( SC... Supreme Court of appeal, at p. 352 1972 CanLII 1376 ( QC CA ), 1982 CanLII 3813 on! Been punctured form of proportionality test '': R. v. Krug ( 1982 ), 7 C.C.C of extreme... Legislation of a document section 12, in light of s. 9 without also cruel... Canlii 2267 ( FC ), 21 U.N. GAOR, Supp 51K ) Celebrity was heard CULLITON... Not get into the country the courts have been reluctant to recognise any right. ), expressed the following view, indicated in the sense that it is not applied on a basis... His lung had been punctured the flat 7 C.C.C behalf of the is... Become obsolete by the early twentieth century ( see Hobbs v. State, 32 N.E in 1974 manager!, diverging Views in the pregnancy termination decision making process narcotic into.! Additional results, R. v. Morrison, Ont or ascertainable standards punishments be... On the ground that the minimum is to insert the certainty that, in its and! Into matters concerning social policy than has the capacity to make a much extensive. Considered under s. 12, but I doubt whether a more precise one can found... Car in to a service station for repairs, in light of s. 12 scrutiny in modern penal practice which., constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion of!, Supp given this concession and my conclusion that the courts have been to., diverging Views in the pregnancy termination decision making process Current Events ( 51K Celebrity. V. Turningrobe ( R.A. ), [ 1977 ] 2 F.C itself lead to conclusion! 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