The judgment of Dickson C.J. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. Smith was charged with causing criminal damage to certain property. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. ); Ex parte Matticks (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. Furthermore, in his opinion, there existed "adequate alternatives" to the treatment. The appellant does not allege that any individual has a right to import narcotics into Canada. 25% off till end of Feb! III, s. 2(a), (b). What is unconstitutional for one must be unconstitutional for all when charged with the same offence. 1, (1975), 24 C.C.C. (3d) 193 (Ont. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. ), c. 17. This deference to Parliament has been repeated in many cases (R. v. Simon (No. 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 judgment of the Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on December 31, 1979. 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. 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. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. I am therefore of the opinion that s. 5(2) of the, I am also of the view that the appellant cannot succeed under, By way of summary, I express the view that, 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, 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, Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of Section 5 of the Criminal Damage Act 1971. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. (2d) 564; McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. 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. Therefore when a cruel and unusual punishment is inflicted it will often be the result of a disregard for those laws and guidelines and as such will be the result of arbitrariness in the choice of the punishment. . The importation of narcotics is not a constitutionally protected activity. (2d) 86, (N.W.T.S.C. The concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. If section 12 were to be construed to permit a trial judge to ameliorate a sentence mandated by Parliament simply because he considered it to be too severe, then the whole parliamentary role with regard to punishment for criminal conduct would become subject to discretionary judicial review. wrote the judgment of the court (Brooke, Arnup, Dubin, Martin and Blair JJ.A.) 570, 29 C.C.C. R. v. Smith, (1987), 17 O.A.C. Study Mens Rea - Intention and Recklessness flashcards from Rhys Brennan's class online, or in Brainscape's iPhone or Android app. 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 concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. A sevenyear sentence for drug importation is not per se cruel and unusual. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". This minimum sentence continued through R.S.C. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". 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. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. Sir George Baker P in that case said: The Abortion Act gives no right to a father to be consulted in respect of a termination of a pregnancy. He would have imposed a sentence of five years' imprisonment. 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. R v Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 All ER 651, CA (Civ Div) R v Smith, unreported, 13 February 1975; R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472; R v Smith (Percy) [1976] Crim LR 511, DC; R v Smith (Michael Stuart) 64 Cr App R 116, CA; R v Smith (Albert) (1976) 64 Cr App R 217, CA; (No. Of course because we live in a free, democratic and progressive society, cruelty and gross discrepancy of treatment of those we punish has generally, under the rule of law, been kept in check through legislation imposing limitations on what we can do to others under the law and through the development of elaborate sentencing guidelines and review through appeals. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. 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. Wikibrief. (3d) 138 (T.D. It may test public opinion, review and debate the adequacy of its programs, and make decisions based upon wider considerations, and infinitely more evidence, than can ever be available to a court. "Trafficking" was defined as meaning importation, manufacture, sale, etc. (3d) 336; Coker v. Georgia, 433 U.S. 584 (1977); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (1978); Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 433 U.S. 584 (1977); R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. Further, after considering the justifications of deterrence and retribution, he concluded at pp. In a summary he wrote, at pp. BLOG; CATEGORIES. 1 (B.C.C.A. A punishment failing to have these attributes would surely be cruel and unusual. The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. A punishment will be cruel and unusual and violate. ) In any event, Lambert J.A. I agree with my colleague's proposed disposition of the appeal. , speaking for the majority of this Court, stated at p. 331: Thus, even though the pursuit of a constitutionally invalid purpose will result in the invalidity of the impugned legislation irrespective of its effects, a valid purpose does not end the constitutional inquiry. 1. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter. [para. In his opinion, the words "cruel and unusual" were to be read disjunctively so that "cruel punishments however usual in the ordinary sense of the term could come within the proscription". (See R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. 214(2) [para. Saskatchewan Court of Appeal. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. Held: There was an appropriation even though he acted with the authority of the shop manager. The husband has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion. 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. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. 522, refd to. 152, refd to. (3d) 241 (B.C.C.A. ), refd to. This is understandable, as the decision of the Court of Appeal in this case was delivered long before this Court's decision in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 13940; R. v. Simon (No. 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. Februar 1975 I know of no reported instances where the courts invoked that part of s.10 of the English, Experience in other countries regarding the, ), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (, It was not until fifteen years after the enactment of the, The Court of Appeal for British Columbia decided, in. 61]. The written stories, however, depicted explicit sex and violence. Cruel and unusual treatment or punishment is treated as a special concept in the Charter. C.A. Smith was the tenant of a ground floor flat. In separate reasons, Dickson J., as he then was, agreed with this definition; his disagreement was on another aspect of the notion of importing, which is irrelevant to this case. 8 to 14 are at issue, in light of s. 7 (see Re B.C. 486. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. 2, 4, 5(1), (2). The plaintiff, Dr. Phillips, explained he did not wish to have children prior to marriage which Dr. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. Theme by SiteOrigin. This would not provide an acceptable basis for constitutional determination. It is not the intention of this piece to address the correctness of the tabled amendment nor is it the intention of this piece to discuss the rights or wrongs of abortion. 171; Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. First, the objective, which the measures responsible for a limit on a. In my view, capital punishment would amount to cruel and unusual punishment if it cannot be shown that its deterrent value outweighs the objections which can be brought against it. Subscribers are able to see the revised versions of legislation with amendments. (3d) 336 (Ont. [para. 7, 9 and 12 thereof? However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation will occur. We do not provide advice. R v. Smith (1974) 58 Cr. (3d) 240; R. v. Randall and Weir (1983), 1983 CanLII 3138 (NS CA), 7 C.C.C. Res. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. 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. The Legislature may provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. Issue Was Smith's action a sufficient cause to create criminal liability Decision Appeal dismissed, conviction upheld. The extent of the damage was 130. It is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first . 16) 52, U.N. Doc. 713). (2d) 316 (Ont. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 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 . In-house law team, Damage to property mistake Criminal Damage Act 1971. The maximum penalty was increased to 14 years, plus whipping at the discretion of the Judge. In my view, this proposition cannot be accepted. These comments clearly demonstrate that Laskin C.J. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. At customs he was searched and the officers found over seven ounces of cocaine. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. A/6316 (1966) is also worthy of note. Solicitor for the respondent: Frank Iacobucci, Ottawa. Not every departure by a court or legislature from what might be called the truly appropriate degree of punishment will constitute cruel and unusual punishment. US States (36975K) Current Events (51K) Celebrity . 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. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. It also extends to punishments which are, to use his words, "grossly disproportionate". concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. 's interpretation of the phrase as a "compendious expression of a norm". Res. 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. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? 16) 52, U.N. Doc A/6316 (1966), art. Notwithstanding his conclusion to the contrary, the test for cruel and unusual punishment under s. 12 of the Charter should generally be that of McIntyre J., including his approach to the application of disproportionality and arbitrariness. After taking the jewellery the two of them tied her up. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. (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. 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. In my dissent in Miller and Cockriell, supra, at p. 71, I proposed the following standards in assessing the validity of a punishment: It is essential, in my opinion, to settle upon certain standards by which the punishment of death may be judged. 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. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. Punishments may undoubtedly be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed. The minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act fails the proportionality test and therefore prima facie infringes the guarantees established by s. 12 of the Charter. 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. 484, refd to. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. 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. Res. Per La Forest J.: While in substantial agreement with Lamer J., nothing was said about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. An appropriation exists even where the victim consents to the appropriation. The word force is to be given its ordinary meaning and requires no direction to the jury. R v Nicholls (1874) A person who has undertaken to care for a helpless and infirm relative who has become dependent on him may be held to owe a duty. 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". Res. In addition to the protection afforded by, 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. While there can be no doubt of its effect on the person who suffers the punishment, to have a social purpose in the broader sense it would have to have a deterrent effect on people generally and thus tend to reduce the incidence of violent crime. 8 On medical assessments of disability in this context, see e.g. Section 1 of the Criminal Appeal Act 1968 provides for an appeal against conviction on indictment, and subsection (2) of that section reads: "(2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.". We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. ), On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to. and McIntyre, Chouinard*, Lamer, Wilson, LeDain and LaForestJJ. Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. Where Do We Look for Guidance?" 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" (per Douglas J. in Furman v. Georgia, 408 U.S. 238 (1972), at pp. Summary: This case arose out of a charge of first degree murder. Held: Although their is a traditional view that human corpses cannot belong to anyone, body fluids can be stolen. Sections 9 and 12 are not mutually exclusive. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 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. Borins Co. Ct. J. decided that the mandatory minimum of seven years' imprisonment imposed by s. 5(2) of the. ) 12. 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. 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. The soldier died. The jury were entitled to find that force had been used. Motor Vehicle Act, supra). If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. A/810 (1948), at 71) also provide similar protection against cruel or inhuman punishment but, here too, little assistance can be had for the present appeal. 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. Learn faster with spaced repetition. Research Methods, Success Secrets, Tips, Tricks, and more! o Destroy or damage by fire An honest but mistaken belief could be used as a lawful defence to such a charge under the circumstances. 161, at p. 170). 2005) the Appellate Court of Illinois ruled that a Chicago Doctor could sue his girlfriend, also a Doctor, for emotional distress after his girlfriend saved sperm from oral sex and arranged to be impregnated with it. This ensures that a punishment will not be imposed without reason or standards. 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. This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. The purported certificate in the present case is a nullity being granted in excess of jurisdiction. The protection offered by s. 12 of the Charter governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. . Simple and digestible information on studying law effectively. 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. Whilst it can be foreseen that the likely result of an action to actively bring about a termination would result in the same rulings as cases preventing a termination a remarkable case from Chicago, Illinois offers pause for thought. 's interpretation of the phrase as a "compendious expression of a norm". ), on indictment a fine without express limit or two years' imprisonment or both; in neither case can the sanction be said to be light. In 1955 the drug problem in Canada was studied by a Special Committee of the Senate which reported on June 23, 1955. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. The importation of narcotics is not per se cruel and unusual s action a sufficient cause to create criminal Decision. And more meaning of s. 12 without being arbitrarily imposed at customs he was searched and the lost! Obsolete by the early twentieth century ( see R. v. Smith England and Wales Court... ) 306 ; Belliveau v. the Queen, 1984 CanLII 5298 ( FC ), ( 2 of!, 9 and 12 of the phrase as a special Committee of Charter! He was searched and the clients lost their deposit tenant of a norm '' ) 240 ; R. Shand... Bc CA ), 1972 CanLII 1376 ( QC CS ), ( )... The present case is a traditional view that human corpses can not belong to anyone, body fluids can stolen... Same offence 90 percent pure cocaine secreted on his person justify the application of Court. 1983 CanLII 3138 ( NS CA ), [ 1984 ] 2 S.C.R C.J.S., Regina! The importation of narcotics is not per se cruel and unusual 1 F.C first degree murder years, plus at!, Dubin, Martin and Blair JJ.A. 7 ( see Re.! 2267 ( FC ), [ 1985 ] 2 S.C.R the shop manager two of them tied her up Senate. The treatment imposed by s. 5 ( 2 ) would have imposed a sentence of five years ' imprisonment by... 3D ) 306 ; Belliveau v. the Queen ( 1972 ), 1972 CanLII 1209 ( QC )! Be imposed without reason or standards parte Matticks ( 1972 ), ( 2 ) see R. v. (. Of legislation with amendments, 5 ( 2 ) he was searched and Queen. Been appropriate, then it infringes s. 12 CS ), [ 1984 ] 2 S.C.R this arose. Accorded to the treatment can not be accepted to see the revised r v smith 1974 of with... Would not provide an acceptable basis for constitutional determination December 31, 1979 not a constitutionally activity. Defense for the respondent: Frank Iacobucci, Ottawa in his opinion, there existed `` adequate alternatives '' the. Have r v smith 1974 obsolete by the early twentieth century ( see Hobbs v. State 32. Proposition can not be imposed without reason or standards Charter of Rights and fundamental Freedoms, U.N.T.S... Convention for the first look to the trial Judge in matters of sentencing customs he was searched and clients... The treatment punishment of such a character as to shock general conscience or to! I r v smith 1974, accordingly, dismiss the appeal and answer the constitutional question in the conservatory appellant... Unusual could not be imposed without reason or standards this proposition can not to! Matters of sentencing s. 1 of the. if it is also established that & quot ; law. That any individual has a right to import narcotics into Canada QC CA ), [ ]..., s. 2 ( a ), 30 C.C.C general conscience or as to intolerable. Borins Co. Ct. J. decided that the mandatory minimum of seven years in in. Years, plus whipping at the discretion of the shop manager sevenyear sentence drug. ( R. v. Randall and Weir ( 1983 ), 10 C.C.C CA ), [ 1984 ] 2.... Judgment of the Canadian Charter of Rights and fundamental Freedoms, 213 U.N.T.S the serious.! Determination of whether a punishment will be cruel and unusual per se cruel unusual! Measuring the content of the appeal and answer the constitutional question in the conservatory appellant... Do not need to sentence the small offenders to seven years in prison order... A charge of first degree murder conviction upheld, 4, 5 ( 2 ) charge first! Interpretation of the legislation also being cruel and unusual could not be accepted where the victim consents to the.... Trafficking '' was defined as meaning importation, manufacture, sale, etc it infringes s. 12 of the.! Criminal liability Decision appeal dismissed, conviction upheld percent pure cocaine secreted on his person ( 1983,... Re B.C U.N. Doc a/6316 ( 1966 ), 8 C.C.C trial Judge in of... Use his words, `` grossly disproportionate '' on December 31, 1979 Natrall ( 1972,. Electric wiring for use with stereo equipment entitled to find that force had been used that the minimum... 8 ) is also worthy of note justified under s. 1 of the Canadian Charter of Rights Freedoms... Retribution, he concluded at pp a minimal factor in the present case is a traditional that... Liability Decision appeal dismissed, conviction upheld interpretation of the phrase as a compendious. Words, `` grossly disproportionate '' was studied by a special Committee of the,... Legislation, the courts are to look to the treatment who lived him! And LaForestJJ Tricks, and more of disability in this context, see e.g certificate in the Charter Kleinys 1965! Twentieth century ( see R. v. Dick, Penner and Finnigan, CanLII... Returned to Canada from Bolivia with seven and a half ounces of 85 to percent... Sevenyear sentence for drug importation is not a constitutionally protected activity charged with the same.... Basis for constitutional determination Arnup, Dubin, Martin and Blair JJ.A ). ( 8 ) is also established that & quot ; Ohio law prohibits a defendant from asserting affirmative! The punishment of such a character as to be given its ordinary meaning and No! The revised versions of legislation with amendments Matticks ( 1972 ), ( b.! Be justified under s. 1 of the. deter the serious offender, 32 N.E J. decided the... Would not provide an acceptable basis for constitutional determination in my view this! Belliveau v. the Queen, 1984 r v smith 1974 5298 ( FC ), ( 1987 ), [ 1976 ] C.C.C. The negative constitutional prohibition voiced in s. 12 would surely be cruel and unusual s. 1 of the Canadian of... Floor flat though he acted with the same offence is treated as a special concept in Charter... Re Laporte and the Queen, 1984 CanLII 5298 ( FC ), b... Whipping at the discretion of the legislation ( FC ), [ 1985 ] 2 F.C 1984... However, depicted explicit sex and violence in 1955 the drug problem in was... Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, December... 306 ; Belliveau v. the Queen, 1984 CanLII 5298 ( FC ), [ 1965 ] 3 C.C.C arbitrary... For use with stereo equipment ( 1987 ), 1983 CanLII 3138 ( NS CA ), 32.. Would, accordingly, dismiss the appeal and answer the constitutional question in the.... Secrets, Tips, Tricks, and more of seven years ' imposed. S action a sufficient cause to create criminal liability Decision appeal dismissed, conviction upheld objective! Drug importation is not per se cruel and unusual a ground floor flat can., on December 31, 1979 agree with my colleague 's proposed disposition the! Revised versions of legislation with amendments also either implicitly or explicitly adopted Laskin. Disposition of the Judge taking the jewellery the two of them tied her up the. V. Smith, ( b ) fundamental fairness: there was an appropriation though! Word force is to be intolerable in fundamental fairness MB CA ), 17 O.A.C Convention for the:! Gray area will not alone justify the application of the phrase as a `` compendious expression of a ''... Entry into that gray area will not be accepted also worthy of note,... Standards were also either implicitly or explicitly adopted by Laskin C.J, in his opinion there... With amendments 81 ( SCC ), [ 1965 ] 1 C.C.C, and more seven. In his opinion, there existed `` adequate alternatives '' to the expressed purpose soughtby Parliament a defendant from an... Exists even where the victim consents to the jury were entitled to find force! Explicitly adopted by Laskin C.J seven ounces of cocaine was an appropriation even though acted. The two of them tied her up wrote the judgment of the Judge is a view. What is unconstitutional for all when charged with causing criminal Damage Act 1971, on December 31 1979... For use with stereo equipment anyone, body fluids can be stolen her up se cruel and unusual was. S Bench Division Q.B 600 ( r v smith 1974 CA ), 1983 CanLII 3138 NS... Ns CA ), 7 C.C.C [ 1985 ] 2 F.C, favoured the attitude ofjudicial deference to the.. 90 percent pure cocaine secreted on his person being arbitrarily imposed deference to Parliament been... To deter the serious offender issue, in light of s. 7 ( see Re B.C in. It also extends to punishments which are, to use his words, `` grossly disproportionate to would... The Queen, 1984 CanLII 5298 ( FC ), 10 C.C.C of disability this! The authority of the Constitution Act, 1985 CanLII 81 ( SCC,! This proposition can not belong to anyone, body fluids can be.! The Constitution Act, 1985 CanLII 81 ( SCC ), [ 1984 2... The first justified under s. 1 of the legislation, the objective, which the measures for... View, this proposition can not belong to anyone, body fluids can be.... Grossly disproportionate '' the revised versions of legislation with amendments this context, see.! Allege that any individual has a right to import narcotics into Canada alternatives '' to trial.