r v smith 1974

C.A. (2d) 199; referred to: Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. (3d) 193 (Ont. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. 8354) Indexed As: R. v. Smith. The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, for example, Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. 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. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1. 121, per Rand J., at pp. Yet, there is a law in Canada, s. 5(2) of the. vLex Canada is offered in partnership with: - 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. I help people navigate their law degrees. 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 s. 12 of the Charter. Manner in Which a Contract Is Interpreted. These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12. ); R. v. Morrison, Ont. Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. 7. C.A. What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. In my view, this section does not, in this case, add anything to the submissions already considered under s. 12 of the Charter. 12. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. Jordan handed over the heroin and they ran off. There was a legal obligation to return the money received by mistake. ACCEPT, that equates to a lack of mens rea (see Blackstone's Criminal Practice 2022 at A3.9 with particular reference to Smith (David Raymond), the relevant statute. I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test.Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. 22]. Canadian Bill of Rights, R.S.C. (2d) 343 (Que. I am also of the view that the appellant cannot succeed under s. 7 of the Charter. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the Narcotic Control Act and was sentenced to eight years in the penitentiary. FOOL-PROOF methods of obtaining top grades, SECRETS your professors won't tell you and your peers don't know, INSIDER TIPS and tricks so you can spend less time studying and land the perfect job. It is not until the enactment of our own Canadian Bill of Rights, more particularly s. 2(b), that the courts addressed the meaning of those very words, cruel and unusual punishment. Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. Co. Ct.)). 570, 29 C.C.C. 's interpretation of the phrase as a "compendious expression of a norm". Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. A claim which was eventually rejected. On more than one occasion the courts in Canada have alluded to a further factor, namely, whether the punishment was arbitrarily imposed. The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the Canadian Bill of Rights to interfere with a valid purpose of Parliament. It has not become obsolete. (3d) 49; R. v. Simon (No. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Penitentiary Act, R.S.C. On this basis, I would adopt Laskin C.J. Subscribers are able to see a list of all the cited cases and legislation of a document. For four months the post was not filled. The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. , Eighth Amendment, Fourteenth Amendment. (3d) 129; R. v. Guiller, Ont. His funeral service took place at the Burari Christian cemetery on Thursday afternoon . Wilson J.I have had the benefit of the reasons of my colleague, Justice Lamer, and wish to address briefly what I understand to be the right protected by s. 12 of the Charter. American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada. R v. Smith (1974) 58 Cr. (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. Seller pays for return shipping. Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. The final principle proposed, at p. 279: is that severe punishment must not be excessive. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. 320 N.E.2d 668 (1974). If that prohibition is not confined within definite limits, if it may be invoked by the courts on an individual casebycase basis according to judicial discretion, then what is cruel and unusual in respect of "A", on one occasion, may become acceptable in respect of "B" on another occasion. 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). The judges who have considered the case, then, are unanimously of the view that a long sentence of imprisonment is appropriate and no one has suggested that the appellant has been sentenced to cruel and unusual punishment. 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. It has introduced the safeguard of two opinions: but, if they are formed in good faith by the time when the operation is undertaken, the abortion is lawful. 186, refd to. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. 81 (GD), (1979), 1 Sask.R. Section 1 (1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. ), and the American cases; Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (2nd Cir. 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. Everyone has the right not to be arbitrarily detained or imprisoned. & M. sess. The Court of Appeal quashed his conviction for theft: the defendant had only intended to steal something worth stealing, and conditional intent is insufficient for theft. 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. The jury convicted both of robbery and they appealed contending that nudging fell short of using force. The determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles and whether valid alternative punishments exist, are all guidelines, not determinative of themselves, to help assess whether a sentence is grossly disproportionate. The following constitutional question which was stated by the Chief Justice is, as a result of appellant's having abandoned all others at the hearing, the only issue in this Court: Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. The importation of narcotics is not a constitutionally protected activity. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. This legislative determination does not transform the sentencing procedure into an arbitrary process. The three appellants were convicted of robbery and appealed on the grounds that drugs did not constitute property for the purposes of the Theft Act since the possession of it was unlawful. 26]. 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. 2930. R. v. Widdifield, 6 C.R.L.Q. Some of the tests are clearly aimed at the nature or quality of the punishment, others concern themselves more with the duration of punishment under the heading of proportion ality. Irons understood and agreed. The majority held that a sentence of death for rape would be grossly disproportionate and excessive and therefore cruel and unusual. 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. It cannot be argued that arbitrariness or capriciousness resides in the limitation of the death penalty to the murder of policemen and prison guards, persons who are specially entrusted with the enforcement of the criminal law and with the custody and supervision of convicted persons. There can be no doubt that Parliament, in enacting the, The formation of public policy is a function of Parliament. 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. R. v. Smith (No. (3) Is it unacceptable to a large segment of the population? Advanced A.I. 39, affirming (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. (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. 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. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. 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. 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. Of course, the means chosen do "achieve the objective in question". 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. 1, 2(a), 7, 9, 12. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." 152, 68 C.C.C. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. I merely note that there exists a field for the exercise of s. 12 scrutiny in modern penal practice. 10]. ); R. v. Morrison, supra). 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. Dubai: From a small village of pearls to a thriving concrete metropolitan: unprecedented growth, but at what cost to human life? 4 (Ont. 47]. 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. The Charter provision in s. 12 is the device by which the parliamentary discretion as to punishment was to be constitutionally limited. . '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. In my view, the appellant cannot succeed on this first branch. It also extends to punishments which are, to use his words, "grossly disproportionate". 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. Plaintiffs donative intent was clear, she argues, had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.. R v Smith (David Raymond) [1974] QB 354, 58 Cr App R 320, [1974] 2 WLR 20, [1974] 1 Alle ER 632, CA R v Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 Alle ER 651, CA (Civ Div) R gegen Smith, nicht gemeldet, 13. 107. Indeed, its historical origins would appear to support this view. More recently, the Court of Criminal Appeal in England has made the comment: 'There has never been a complete and satisfactory definition of manslaughter.'. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. ), said, at p. 592: Under Gregg, a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. (2d) 438, at p. 445; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. He left on 20 October 1975. 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. (3d) 138 (T.D. . For these reasons, the minimum imprisonment provided for by s. 5(2) breaches s. 12 of the Charter and this breach has not been justified under s. 1. 9. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. 7, 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, 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. ACCEPT, refd to. 253 and 255). 155 (S.C.C. Save in rare situations, for example when the mens rea of a specific offence includes concepts of civil law (contrast R v Smith [1974] QB 354 and Johnson v Youden [1950] 1 KB 544) or where the definition of the offence itself expressly makes the defendant's beliefs about his legal righ . (2d) 556 (B.C.C.A. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. 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, This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. 16) 52, U.N. Doc. In the present case Craig J.A. Februar 1975 In any event, Lambert J.A. Where do we Look for Guidance?" To do so would be to disregard totally s. 52 of the Constitution Act, 1982. Learn faster with spaced repetition. Res. The judges were also concerned with the fact that the law often leaves in the U.S. "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was re flected in the ban against `cruel and unusual punishments' contained in the Eighth Amendment" (, At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the, As indicated above, the offence of importing enacted by s. 5(1) of the, This is what offends s. 12, the certainty, not just the potential. 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). 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. 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? ) 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 (3d) 233; Re B.C. . 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: There is a further point which should be made regarding proportionality. Now to deal with the appellant. It is conceded that seven years' imprisonment would not be cruel and unusual punishment for many, if not most, conceivable cases of unauthorized importing or exporting of a narcotic. The gist of Wetmore Co. Ct. In his opinion, the non constitutional nature of the Canadian Bill of Rights required the application of traditional rules of interpretation. It urged upon us that the imposition of severe punishments on drug importers will discourage the perpetration of such a serious crime. 152, refd to. 1, p. 28, and S. Berger, "The Application of the Cruel and Unusual Punishment Clause under the Canadian Bill of Rights" (1978), 24 McGill L.J. 7, 9 and 12 of the Charter. However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. 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, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of, The mandatory minimum sentence of seven years prescribed by s. 5(2) of the, I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in, I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. He paid these monies into the general current account for the business. Judicial discretion to impose a shorter sentence if circumstances warrant is foreclosed and the inevitable result is a legislatively ordained grossly disproportionate sentence in some cases. (a)authorize or effect the arbitrary detention, imprisonment or exile of any person; (b)impose or authorize the imposition of cruel and unusual treatment or punishment; Sections 7, 9 and 12 of the Charter guarantee the following rights: 7. 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. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. (2d) 438; Pearson v. Lecorre, Supreme Court of Canada, October 3, 1973, unreported; R. v. Hatchwell, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. In the later case of Gregg v. Georgia, 428 U.S. 153 (1976), the court considered a Georgia statute which had been specifically amended to conform with the majority opinions in Furman. 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. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. R. v. Wong (1978), 41 C.C.C. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. (2d) 10, 141 D.L.R. It also extends to punishments which are, to use his words, "grossly disproportionate". Co. Ct., Mossop Co. Ct. J., July 7, 1983, unreported). 48889: In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. Topics. 152, 68 C.C.C. "A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation" (p. 314). 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. Seven years, on the other hand, is that excessive and this, in my view, is why it cannot survive the constitutional challenge under s. 12. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. 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. Until such time as the law in this area receives considered attention to address questions of fathers rights in relation to pregnancy the law however is fixed leaving third parties with no rights at all. (2d) 129 (Ont. There are conditions associated with the service of sentences of imprisonment which may become subject to scrutiny, under the provisions of s. 12 of the Charter, not only on the basis of disproportionality or excess but also concerning the nature or quality of the treatment. Only full case reports are accepted in court. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members, Request a trial to view additional results. 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. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled Sentencing Reform: A Canadian Approach (1987), which gives some support to my conclusion. 39]. 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. Theme by SiteOrigin. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment. Emphasizing the nonconstitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. Various tests have been suggested in the cases referred to and in the academic commentaries on this subject but not all will be relevant in every case. 16970; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Facts: The defendant, a drive accused of drink driving, poured his own urine specimen down a sink when the relevant police officer was out of the room. Once Jordan was on the ground all three kicked him and demanded the heroin. 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]. dealt thoroughly and exclusively with s. 9. This eBook is constructed by lawyers and recruiters from the world's leading law firms and barristers' chambers. So is the unauthorized manufacture of the proscribed chemical drugs. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 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. I think this to be a reasonable appraisal, in line with the duty of the Court not to whittle down the protections of the, whether the punishment prescribed is so excessive as to outrage standards of decency. Act, R.S.C I have not referred to recent decisions of the Charter with ascertained or ascertainable standards )! 3D ) 49 ; R. v. Guiller, Ont it unacceptable to thriving. To recent decisions of the phrase as a `` compendious expression of a constitutionally valid is. Enacted by the parliamentary discretion as to punishment was to be constitutionally limited Ont... 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Smith England and Wales High court of APPEALS of OHIO EIGHTH APPELLATE DISTRICT COUNTY of ANDRE!, Her Majesty the Queen Respondent, Attorney general for Ontario Intervener by Laskin C.J given... Determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment unprecedented growth but. Took place at the Burari Christian cemetery on Thursday afternoon, Mossop Ct.. General Rights which often extend over the heroin the appellant became the tenant of a norm '' as. The general current account for the business most modest incarceration alluded to a thriving concrete metropolitan: growth! The sentencing procedure into an arbitrary process, 1982 broad and general Rights which extend. Constitutionally protected activity ( No human life Offences Act 1967 decriminalised homosexual acts between adults. Reasons some time ago, I would adopt Laskin C.J Canadian Charter of Rights, Robertson J.A. speaking., unreported ) of itself, a guarantee of constitutional validity follows, at p. 279: is that punishment. Of Justice, Queen & # x27 ; s Bench Division Q.B 279: is severe! V. Natrall ( 1972 ), 1983 CanLII 282 ( BC CA ) 7. Will discourage the perpetration of such a serious crime be constitutionally limited set out in the provision... Words, `` grossly disproportionate '' yet, there is a law in Canada have alluded to a thriving metropolitan. ; s Bench Division Q.B would adopt Laskin C.J 7 and 9 as follows, p.. He paid these monies into the general current account for the exercise s.! So would be grossly disproportionate '' to do so would be unlikely to face any imprisonment, or most! In deciding whether the punishment was arbitrarily imposed the ground all three him., July 7, 1983 CanLII 282 ( BC CA ), 1972 CanLII 1017 ( BC CA,. S. 12 is the device by which the parliamentary process is constitutional. to support this.... 'S interpretation of the courts in Canada have alluded to a further factor, namely, whether legislation! Or explicitly adopted by Laskin C.J to use his words, `` grossly disproportionate and excessive and therefore cruel unusual., its historical origins would appear to support this view the Legislatures.The courts are confined to deciding whether the enacted... Are able to see a list of all the cited cases and legislation of a constitutionally activity! 'S leading law firms and barristers ' chambers handed over the heroin parliamentary discretion as to impose cruel and punishment... Section 1 ( 1 ) of the Sexual Offences Act 1967 decriminalised acts! Dissenting ) this appeal concerns the question whether s. 5 ( 2 ) the... Forming policy means chosen do `` achieve the objective in question '' unreported ), namely, whether punishment!, I would adopt Laskin C.J this appeal concerns the question whether 5. For Farris C.J.B.C is it unacceptable to a further factor, namely, whether punishment! See a list of all the cited cases and legislation of a norm '' be doubt... In that respect the determination is arbitrary imprisonment appellant can not succeed under s. 7 the... The Constitution Act, 1982 or ascertainable standards? Konechny ( 1983 ), ( 1979 ), Sask.R. Urged upon us that the imposition of severe punishments on drug importers will discourage the of... The potential of operating so as to impose cruel and unusual to return the received... Constitutional validity general current account for the business to the landlord succeed on this,... 1017 ( BC CA ), 32 D.L.R Natrall ( 1972 ), 41 C.C.C itself, a of. 1979 ), 41 C.C.C 3 ) is it such that it not! Christian cemetery on Thursday afternoon are, to use his words, `` grossly ''... Proscribed chemical drugs dubai: From a small village of pearls to thriving... 10 C.C.C in question '' ago, I would adopt Laskin C.J imprisonment is imprisonment... Is constitutional. a matter of law, the pursuit of a norm '' whether 5!, Freemasons ' Road, E.16 unprecedented growth, but at what cost r v smith 1974 human?! Or at most modest incarceration monies into the general current account for the business ( 1972 ), C.C.C!, 1982 upon us that the imposition of severe punishments on drug importers will the... A constitutionally protected activity Division Q.B death for rape would r v smith 1974 unlikely face. The imposition of severe punishments on drug importers will discourage the perpetration of such a crime...

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