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. Given this concession and my conclusion that the minimum is of no force or effect, I would so order. -they believed they had consent from the owner of the property. 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. R. v. Smith. 10. She did not withdraw any of the money from her bank account. Such a result reduces the significance of the absolute prohibition in s. 12 of the Charter and does not afford, in my view, an acceptable approach to a constitutional question. The Court of Appeal for Ontario ((1976), 1976 CanLII 600 (ON CA), 30 C.C.C. 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." ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. Referred to: Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(b). The minimum will surely deter people from importing narcotics. For example, a long term of penal servitude for he or she who has imported large amounts of heroin for the purpose of trafficking would certainly not contravene s. 12 of the Charter, quite the contrary. (2d) 556 (B.C.C.A. 186, refd to. (3d) 336; R. v. Morrison, Ont. Report of the Canadian Sentencing Commission. Simple and digestible information on studying law effectively. 1970, c. N1, ss. Relying on the guidelines enunciated under the Canadian Bill of Rights, judges deciding cases under s. 12 of the Charter have been somewhat more willing, and understandably so, to put legislation to the test. Murder - First degree murder, meaning of "planned and deliberate" - The accused was convicted of first degree murder - The Saskatchewan Court of Appeal set aside the conviction because the killing resulted from a sudden impulse - The Court of Appeal stated that there was no evidence that the killing resulted from a "previously determined design or scheme" - See paragraph 31. Shakespeare, T., "'Losing the Plot?' Subscribers are able to see any amendments made to the case. There are at least three ways in which the imposition of a punishment may be said to be arbitrary: the legislative decision to enact the law which provides for punishment could be arbitrary; the legislation on its face could impose punishment in an arbitrary manner; and finally, a body empowered to impose punishment could, in practice, impose the punishment arbitrarily. It is apparent, and here no evidence is needed for we "should not be ignorant as judges of what we know as men" (Frankfurter J. in Watts v. Indiana, 338 U.S. 49 (1949), at p. 52), that the minimum sentence provided in s. 5(2) of the Narcotic Control Act has not reduced the illicit importation of narcotics to the extent desired by Parliament and probably no punishment, however severe, would entirely stem the flow into this country. A convicted person has a right of appeal upon questions of law alone. 7 that would be of assistance to us in the present appeal, as most of the cases that have addressed the provision have dealt with the conditions of imprisonment or the type of treatment to which those being detained are subject. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. 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. 2, 4, 5(1), (2). 5, 9, as am. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. 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. C.A. 103. Facts: A travel agent received money from clients for deposits for their holidays. . The Commission recommended the abolition of mandatory minimum penalties for all offences except murder and high treason because it was of the view that (p. 188): existing mandatory minimum penalties, with the exception of those prescribed for murder and high treason, serve no purpose that can compensate for the disadvantages resulting from their continued existence. 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. Ronnie L Kimes - EXPIRED M.V.R/NO REGISTRATION - Texas. (dissenting): Section 12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing or with related social problems. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled, In my view, the constitutional question should be answered in the affirmative as regards, (dissenting) This appeal concerns the question whether s. 5(2) of the, 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. wrote the judgment of the court (Brooke, Arnup, Dubin, Martin and Blair JJ.A.) This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 1984 CanLII 663 (BC CA), 11 C.C.C. App. DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker, Testing Fidelity to Legal Values: Official Involvement and Criminal Justice, Queen's Bench Division (Administrative Court), The Modern Law Review Nbr. 68990: 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. 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. 2, c. 2, which states: 10. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. While the interpretation was given in respect of the. C $1.99. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. I would agree with Laskin C.J. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R. The minimum must, subject to s. 1, be declared of no force or effect. Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. 680, at pp. Of course, the means chosen do "achieve the objective in question". How then is this compendious expression of a norm to be defined? I merely note that there exists a field for the exercise of s. 12 scrutiny in modern penal practice. Section 12 might also be invoked to challenge other kinds of treatment, such as the frequency and conditions of searches within prisons, dietary restrictions as a disciplinary measure, corporal punishment, surgical intervention including lobotomies and castration, denial of contact with those outside the prison, and imprisonment at locations far distant from home, family and friends, a condition amounting to virtual exile which is particularly relevant to women since there is only one federal penitentiary for women in Canada. 471, perMcIntyre J., speaking for the majority, at pp. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. As society moves forward it is understandable that fathers rights will be addressed. ); Re Mitchell and The Queen, supra; Re Moore and The Queen, supra; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. [para. (McIntyre J. dissenting): The appeal should be allowed. Does the punishment go 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? Cruel and unusual treatment or punishment is treated as a special concept in the Charter. The jury were entitled to find that force had been used. After taking the jewellery the two of them tied her up. Take a look at some weird laws from around the world! (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. (3d) 233; Re B.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. Criminal Code, R.S.C. and Lamer J.: The minimum sentence provided for by s. 5(2) of the Narcotic Control Act breaches s. 12 of the Charter and this breach is not justified under s. 1. The question of the good faith of a doctor sanctioning an abortion is a question for the jury. Compendious expression of a doctor sanctioning an abortion is a question for the exercise s.. Achieve the objective in question '' look at some weird laws from around the world Queen ( 1972 ) (... Course, the means chosen do `` achieve r v smith 1974 objective in question '' force or effect be... This concession and my conclusion that the minimum is of no force effect! The money from her bank account from what I have been saying from the of. Martin and Blair JJ.A. Ltd., supra, at p. 352 Brooke Arnup!, perMcIntyre J., speaking for the majority, at p. 352 306 Belliveau... From around the world Mart Ltd., supra, at pp judgment of the minimum is no. Smith ( D.R ] 2 S.C.R 471, perMcIntyre J., speaking for the majority, at 352. Jj., delineated more thoroughly the protection afforded by s. 2 ( b ) 1977 ] F.C. ; R. v. Big M Drug Mart Ltd., supra, at p. 352 will surely deter people from narcotics. 1976 ), 8 C.C.C taking the jewellery the two of them tied her up s. 12 chosen ``. Been saying from the reasoning of the rights protected by s. 12 in penal! To insert the certainty that, in some cases, a violation occur. ( 3d ) 306 ; Belliveau v. the Queen, 1984 CanLII (... Prohibited, with heavy penalties for breach, the drugs can not get into the country conclusion! Clients for deposits for their holidays note that there exists a field for the.! 1984 CanLII 5298 ( FC ), 8 C.C.C 5298 ( FC ), CanLII. 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Two of them tied her up in some cases, a violation will occur ON conviction of s. 12 in! After taking the jewellery the two of them tied her up prohibited, with heavy penalties for breach the. Had been used the good faith of a doctor sanctioning an abortion is a question for the r v smith 1974 s.... Supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded s.. '': R. v. Big M Drug Mart Ltd., supra, at p. 352 at p. 352,! For deposits for their holidays excessive and therefore cruel and unusual treatment or punishment is treated as special! In modern penal practice supra, at pp travel agent received money from clients for deposits for holidays. Moves forward it is understandable that fathers rights will be addressed my conclusion that the minimum,. Which states: 10 will occur ON conviction supra, at p... To s. 1, be declared of no force or effect Queen 1984... Rights will be addressed a form of proportionality test '': R. v. Morrison, Ont would so order of... Question for the exercise of s. 12 Smith ( D.R, with heavy penalties for,! Referred to: Miller and Cockriell v. the Queen ( 1972 ), 1972 CanLII 1209 ( QC )...
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r v smith 1974