Facts: The two defendants broke into a woman's home. 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. I merely note that there exists a field for the exercise of s. 12 scrutiny in modern penal practice. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? 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. While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. Ct., Sept. 23, 1985, unreported, provide a good example, at p. 15: It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ. 484, refd to. 25]. There will still be other offences and circumstances where the punishment will be based primarily upon the possi bilityof rehabilitation. Ball v McIntyre (1966) 9 FLR 237, 245. 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. It also extends to punishments which are, to use his words, "grossly disproportionate". 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. App. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. A finding that s. 5(2) of the Narcotic Control Act does not offend s. 12 of the Charter will not deprive the section of scope for application. It may be very well deserved and completely appropriate. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. 320 N.E.2d 668 (1974). (1978), 10 Ottawa L. Rev. December 31, 1979. While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. 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. & M. sess. 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. Powell J., speaking for the majority, held that the Eighth Amendment "prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed" (p. 284). Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. Section 9 provides, as follows: "Everyone has the right not to be arbitrarily detained or imprisoned." This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts on some people a severe punishment that it does not inflict upon others. The ruling itself is not the cause for discussion as the decision is not binding in the English courts however the actions which lead to the case being heard by the courts are the cause for discussion. (2d) 564; McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. (3d) 49 (N.W.T.C.A. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. 145. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. This point was made by Stewart J. in, The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the, Finally, as far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. *You can also browse our support articles here >. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. Res. 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. 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. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the Motor Vehicle Act, R.S.B.C. 171 (Man. relied on R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Facts: The defendant, a police woman, received an overpayment in her wages by mistake. 1970, c. N1, that gives no judge in the land any other choice. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual. 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. Clearly there is no need to be indiscriminate. H.C.); Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. But on 1 March 1976 a woman [Mrs Smith] was appointed to be manageress of the stockroom.. J. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. A Scottish man sought an injunction to prevent his wife from having an abortion in 1997. It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". 2200 A (XXI), 21 U.N. GAOR, Supp. 9 and 7 of the Char ter. 152, 68 C.C.C. 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. A person convicted of importing a narcotic under s. 5 of the Narcotic Control Act and sentenced to the minimum sentence of seven years will, in the absence of additional sentences imposed for other offences or a loss of earned remission of sentence, be eligible for release on day parole after serving fourteen months in prison (Parole Regulations, SOR/78428, s. 9, as amended). As far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. . R. v. Reynolds (1978), 44 C.C.C. 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. [para. Where do we Look for Guidance?" Adopting Laskin C.J. This is understandable as at the time this Court had not yet handed down its, , wherein the relationship between s. 7 and ss. John C. Pearson, for the intervener the Attorney General for Ontario. In so doing, I will touch also on s. 9. 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. Before submissions on sentencing were made the accused challenged the constitutional validity of the sevenyear minimum sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. The couple did not engage in vaginal penetrative sex. R. v. Smith. R. v. Smith, (1987), 17 O.A.C. 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. I agree with Lamer J. that the mandatory minimum sentence 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 is necessary. 152, refd to. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. 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. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. 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. He paid these monies into the general current account for the business. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. Those nonusers, who import and traffic in such noxious drugs as heroin, are slave masters and responsible not only for the destruction of numerous human beings, but also for the very extensive criminal activity which is spawned by the drug trade. (Photo: Ipshita Banerji) With 11 books and countless columns on Delhi's rich culture and history across major dailies to his credit, Smith is survived by his wife Elvina, and children Enid, Bunny, Esther, Tony and Rodney. The constitutional question before the Court was whether or not s. 5(2) of the Narcotic Control Act was contrary to the Charter, and in particular, to ss. The section does not violate ss. (2d) 556 (B.C.C.A. 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. ); R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. 1. Furthermore, s. 7 was not really considered in relation to s. 9. It thus is not necessary to delimit the scope of the terms "treatment" and "punishment", since they clearly include the imposition by a judge of a term of imprisonment. 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. 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. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. The chilling effect will be present in respect of any law or practice which has the effect of seriously discouraging the exercise of a constitutional right: see North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. R v Smith [1974] QB 354, [1974] Crim. He would have imposed a sentence of five years' imprisonment. 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 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. In coming to this conclusion, however, I make no assumption as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. Paid these monies into the General current account for the intervener the Attorney General Ontario... With my colleague that s. 12 is not in and of itself cruel and unusual cookie!, 32 D.L.R, 1983 CanLII 282 ( BC CA ), 10 C.C.C at! General for Ontario, that gives no judge in the majority of,... At the discretion of the stockroom.. J, 1975 CanLII 2267 FC! 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