Whatever be the reason, I should not want to decide the validity of all minimum sentences under s. 9 without the benefit of a thorough discussion on these issues and without any argument being made under s. 1 of the Charter. C.A. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. It cannot be said that the Charter sought to effect that purpose by giving an absolute discretion in the matter to the courts. 2, c. 2, which states: 10. Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the property is contrary to common-sense and to the natural meaning of the words. 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. 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. MR. J. RYLANCE appeared on behalf of the Appellant. Reference this On the issue of arbitrariness, s. 9, I conclude in the interests of judicial comity that the argument is resolved in favour of the Crown in R. v. Newall (1982), 1982 CanLII 301 (BC SC), 70 C.C.C. 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. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. "Look, how can I be done for smashing my own property. reversed the decision of Borins Co. Ct. J. and held that s. 5(2) did not impose a punishment that was so disproportionate to the offence as to be cruel and unusual. 5. A sevenyear sentence for drug importation is not per se cruel and unusual. There was a legal obligation to return the money received by mistake. (2d) 199 (Ont. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. Since it is essential that individuals be free to exercise their constitutional rights as far as is reasonably possible without being forced to incur the expense of litigation or to run the risk of violating the law, parties who have run afoul of a statute may on occasion be permitted to invoke the rights of others in order to challenge the overall validity of the law. The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. The new, This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? 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. 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. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. & M. sess. That certificate, on the face of it, sets out a question of law as the ground on which it is granted. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. (3d) 363 (N.S.C.A. The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. In the meantime the Bill of Rights had been enacted. Res. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. 484, refd to. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. 9092; Levitz v. Ryan, 1972 CanLII 399 (ON CA), [1972] 3 O.R. For four months the post was not filled. . The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. and Lamer J. was delivered by. Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. Viewed in the light of the other sentences which are currently provided for in Canadian law and considering the length of the sentence which will actually be served and the severity of the offence, I am unable to say that the minimum sentence in s. 5(2) of the Narcotic Control Act is such as to outrage the public conscience or be degrading to human dignity. The plaintiff, Dr. Phillips, explained he did not wish to have children prior to marriage which Dr. Furthermore, even assuming some deterrent value, I am of the opinion 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. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. Facts: The defendant took his car in to a service station for repairs. The constitutional question before the Court was whether or not s. 5(2) of the Narcotic Control Act was contrary to the Charter, and in particular, to ss. Subscribers are able to see a list of all the documents that have cited the case. 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. Research Methods, Success Secrets, Tips, Tricks, and more! She had noticed that she had received more than she was entitled to but did not say anything to her employer. & M. sess. The expression "cruel and unusual punishment" was first found in the English Bill of Rights of 1688, 1 Wm. R v G and R [2003] UKHL 50. Learn faster with spaced repetition. I believe this is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment. However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. Punishment not per se cruel and unusual, may become cruel and unusual due to excess or lack of proportionality only where it is so excessive that it is an outrage to standards of decency. Sentencing Reform: A Canadian Approach. 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. These criteria are very usefully synthesized in an article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel and Unusual Treatment or Punishment? Penitentiary Act, R.S.C. Under s. 5(2) of the Act, punishment continues to be imposed for reasons which are rationally connected with the objects of the legislation, that is, the suppression of the illicit traffic in drugs. On the question of arbitrary application, he held, at p. 690: Since we are concerned here with a situation where the death penalty is mandatory, I need not embark on any consideration of questions of uneven application of authorized punishments or questions of discretionary, arbitrary or capricious application of the death penalty. The Abortion debate has been reignited by Conservative Member of Parliament Nadine Dorries proposing an amendment to the Health and Social Care Bill that would make mandatory the offer of independent counselling for women seeking an abortion. (7) Is it in accord with public standards of decency or propriety? The law of England gives him no such right; the Abortion Act 1967 contains no such provision. La Forest J.I am substantially in agreement with my colleague, Lamer J. Some punishments may be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also being cruel and unusual. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. R v Pittwood (1902), R v Smith (1869) 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. (2d) 86, (N.W.T.S.C. 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. 152, refd to. A person convicted of importing a narcotic under s. 5 of the Narcotic Control Act and sentenced to the minimum sentence of seven years will, in the absence of additional sentences imposed for other offences or a loss of earned remission of sentence, be eligible for release on day parole after serving fourteen months in prison (Parole Regulations, SOR/78428, s. 9, as amended). 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). In R v Smith [1974] 1 All ER 376, the only reported case involving prosecution under the Abortion Act 1967, the evidence indicated that the doctor had failed to carry out an internal examination and had made no inquiries into her personal situation. 27]. He was acquitted. Harshness of punishment and its severity in consequences are relative to the offence involved but, that being said, there may still be a question (to which history too may be called in aid of its resolution) whether the punishment prescribed is so excessive as to outrage standards of decency. 70506: Having reached this conclusion I do not find it necessary, in considering the meaning of "cruel and unusual treatment or punishment" as employed in s. 2(b) of the Bill of Rights, to make any assessment of current community standards of morality or of the deterrent effect of the death penalty. 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 purported certificate in the present case is a nullity being granted in excess of jurisdiction. 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. (3d) 353; R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. Per Dickson C.J. (3) Is it unacceptable to a large segment of the population? Where do we Look for Guidance?" Justice Hartman of the Appellate Court of Illinois said: Plaintiff [Dr. Phillips] asserts that defendant committed the tort when she took his semen, sperm, and genetic material without his permission, for the purpose of conceiving a child, purportedly within the bounds of her marriage to [another man]. H.C.); Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. (9) Is it unusually severe and hence degrading to human dignity and worth? Yet the judge has no alternative under the section. 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. 5. 25]. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. It must decide what the aims and objectives of social policy are to be, and it must specify the means by which they will be accomplished. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. C.A. . ), affirmed by 1974 CanLII 203 (SCC), [1976] 1 S.C.R. He also relied on R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. C.A. 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. Parliament, in legislating a minimum sentence, merely concluded that the gravity of the offence alone warranted that sentence. o R v Smith [1974] D must know the property belongs to another, or realise that it might and must intend to destroy or damage it, or realise his actions might result in damage or destruction In this case D made honest mistake of civil law so was not liable, did not have MR What is the actus reus of basic arson? 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. Saunders v Herold (1991) 105 FLR 1. The offence of importing opium was indictable, rendering the offender liable to imprisonment for three years or to a fine not exceeding $1,000 and not less than $50, or both fine and imprisonment. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. It shocked the communal conscience. We do not provide advice. Subscribers are able to see a list of all the documents that have cited the case. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. 16970; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. 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. Canadian Government Publishing Centre, 1987. The test of proportionality must be applied generally and not on an individual basis. COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ANDRE SMITH, : Plaintiff-Appellant, : No. Than in 1972 the Appellant gave notice to quit and asked the landlord to allow the Appellant's brother to remain as tenant of the flat. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. 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. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 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