First, the objective, which the measures responsible for a limit on a. In the United States, where criminal law is within the competence of the state legislatures and thus varies from state to state, the judiciary was concerned with possible discrepancies in the imposition of the death penalty throughout their country. As regards this subject the comments by Borins Dist. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. 9. To take but a few examples, theft of property over $1,000 may be punished by imprisonment for l0 years (s. 294); robbery may be punished by life imprisonment (s. 303); breaking and entering a dwellinghouse with intent to commit an offence may be punished by life imprisonment (s. 306); forgery may be punished by 14 years' imprisonment (s. 325); fraudulent personation may be punished by 14 years' imprisonment (s. 361); manslaughter may be punished by life imprisonment (s. 219); and, finally, trafficking in narcotics may be punished by life imprisonment (s. 4 of the Narcotic Control Act). In 1920 came the Opium and Narcotic Drug Act, c. 31; a series of amendments preceded a new consolidated Act (1923, c. 22) which remained substantially unaltered until 1954. 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. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. 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. (3d) 49; Trop v. Dulles, 356 U.S. 86 (1958); R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. I should add that I do not wish this manner of disposition to be taken as any indication whatsoever of what I may think the appropriate sentence in this particular case might be. D believed the fixtures belonged to him. 713). Employing it here, and considering what was said in R. v. Shand with respect to the enactment of s. 5(2) of the Narcotic Control Act I am not persuaded that it violates either s. 7 or s. 9 of the Charter. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. Yet, there is a law in Canada, s. 5(2) of the Narcotic Control Act, R.S.C. But that would only occur if and when a judge chose to impose, let us say, seven years or more on the "small offender". Upper Deck 2022-23 Series 1 Young Guns Complete Your Set U-Pick UPDATED. 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. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. in R. v. Shand, supra. Capital punishment makes no pretence at reformation or rehabilitation and its only purposes must then be deterrent and retributive. The purpose of this piece is examine what rights, if any, a would be father has in the decision making process and whether in light of American jurisprudence there is any circumstance where fathers should have the right to be consulted. After taking the jewellery the two of them tied her up. It also extends to punishments which are, to use his words, "grossly disproportionate". There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or cannabis sativa. Cruel and unusual treatment or punishment is treated as a special concept in the Charter. While the Lord's Day Act was attacked primarily because it was enacted for a religious purpose, individuals may also challenge enactments on the ground that their effect is to infringe the religious rights of third parties (see R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences per se would affect all those laws. Clearly there is no need to be indiscriminate. 1. 5. 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. 9 and 12 of the Charter. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. 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. Criminal Code, R.S.C. There is a further point which should be made regarding proportionality. Subscribers are able to see a visualisation of a case and its relationships to other cases. The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards. o Destroy or damage by fire 1970, c. C-34 - See paragraphs 23 to 27. 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. (3d) 233, also a decision of the British Columbia Court of Appeal. The Steven John Smith jointly charged is the Appellant's brother. It is true, in general, that when a judge imposes a sentence, he considers the nature and gravity of the offence, the circumstances in which it was committed, and the character and criminal history of the offender, all with an eye to the primary purposes of punishment: rehabilitation, deterrence, incapacitation, and retribution. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. Canadian Bill of Rights, R.S.C. Everyone has the right not to be arbitrarily detained or imprisoned. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) 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. Relying heavily on American cases dealing with the Eighth Amendment of the Constitution of the United States, which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", and the analysis undertaken by McIntyre J.A. *You can also browse our support articles here >. Having made this determination, he then held a presentence hearing and imposed a sentence of eight years in the penitentiary. 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. The importation of narcotics is not a constitutionally protected activity. He nevertheless imposed an eightyear sentence. 's concept of "interacting expressions colouring each other" (see. It would not be permissible to impose a punishment which has no value in the sense that it does not protect society by deterring criminal behaviour or serve some other social purpose. 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. found that the section was not inconsistent with the Charter and, of the opinion that the eightyear sentence imposed by Wetmore Co. Ct. J. was appropriate, he dismissed the appeal from sentence. Experience in other countries regarding the Covenant and the Optional Protocol, to which Canada acceded in 1976, may on occasion be of assistance in attempting to give meaning to relevant provisions of the Charter. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. In this, s. 12 differs from many other sections conferring rights and benefits which speak of reasonable time, or without unreasonable delay or reasonable bail, or without just cause. Yet, as Lamer J. points out, s. 5(2) of the, I disagree, however, with Lamer J. that the arbitrary nature of the minimum sentence under s. 5(2) of the Act is irrelevant to its designation as "cruel and unusual" under s. 12. 1970, c. P6, s. 24, as amended). 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. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. 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. 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. (3d) 1 (F.C.T.D. 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. Dickson C.J. Legislation is arbitrary on its face if it imposes punishment for reasons or in accordance with criteria which are not rationally connected with the objects of the legislation. I would answer the constitutional question and dispose of the appeal as proposed by him. Report of the Canadian Sentencing Commission. This page contains a form to search the Supreme Court of Canada case information database. 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. 2, 4, 5(1), (2). 7 and 9. I agree with my colleague that this would be a cruel and unusual sentence to impose on a youthful offender with no previous record; indeed, it would be a sentence "so excessive as to outrage standards of decency": see Miller and Cockriell v. The Queen, supra, at p. 688. 1970, c. P6, s. 24, as am. (2d) 158 (B.C.S.C. 9 and 7 of the Char ter. Criminal Law. 1970, c. N1, s. 5(2). Furthermore, even assuming some deterrent value, I am of the opinion that it would be cruel and unusual if it is not in accord with public standards of decency and propriety, if it is unnecessary because of the existence of adequate alternatives, if it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards, and if it is excessive and out of proportion to the crimes it seeks to restrain. Smith's brother lived with him in the flat, and they installed electric wiring, roofing material, asbestos wall panels, and floor boards in part of the flat. 61]. 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. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". 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