r v smith 1974r v smith 1974

(1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. The law of England gives him no such right; the Abortion Act 1967 contains no such provision. As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. 1970, c. P6, s. 24, as am. A narcotic is defined at s. 2 of the Act: "narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule; This definition refers to a schedule which lists some twenty substances and the preparations, derivatives, alkaloids and salts thereof, and for some, such as cannabis, the similar synthetic preparations. 1970, c. N1, is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms, and in particular the rights contained in ss. 11]. Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill L.J. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. 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. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the minimum has the effect of obliging the judge in certain cases to impose a cruel and unusual punishment, and thereby is a prima facie violation of s. 12; and, if it is, to then reconsider under s. 1 that purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. 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. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. 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.". 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. Solicitor for the respondent: Frank Iacobucci, Ottawa. I would adopt these words as well and say, in short, that to be "cruel and unusual treatment or punishment" which would infringe s. 12 of the Charter, the punishment or treatment must be "so excessive as to outrage standards of decency". & M. sess. (3d) 277 (Alta. Subscribers are able to see the revised versions of legislation with amendments. Canadian Sentencing Commission. o R v Nicholls 1874- child died after moving in with grandmother. Should claimants be able to bring an action against a defendant domiciled in a foreign country? This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts on some people a severe punishment that it does not inflict upon others. It may well be excessive, but more than excess is required to meet the test of Laskin C.J. *Chouinard J. took no part in the judgment. An overview of the cases since decided under, and have treated the phrase "cruel and unusual" as a "compendious expression of a norm" (, Relying on the guidelines enunciated under the, This deference to Parliament has been repeated in many, It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. I imagine this might be so because cases under s. 5(2) of the Narcotic Control Act are instituted and prosecuted by the "Federal Crown". Section 9 provides, as follows: "Everyone has the right not to be arbitrarily detained or imprisoned." L.R. So is the unauthorized manufacture of the proscribed chemical drugs. The Commission recommended the abolition of mandatory minimum penalties for all offences except murder and high treason because it was of the view that (p. 188): existing mandatory minimum penalties, with the exception of those prescribed for murder and high treason, serve no purpose that can compensate for the disadvantages resulting from their continued existence. [para. La Forest J.I am substantially in agreement with my colleague, Lamer J. A summary of his reasons can be found in the following passage at p. 456: To sum up: s. 2 of the Bill of Rights does not prevent the application of s. 214(1) and (2) and s. 218 of the Criminal Code on the ground that the punishment of death prescribed by the Code is a cruel and unusual one, because (1) punishment by death for murder is not unusual in the ordinary and natural meaning of the word; (2) Parliament, when it enacted the amendments to the Code, was of the opinion that the punishment was not an unusual one and the Court cannot substitute its opinion (if it is different) for Parliament's; and (3) Parliament wished its enactment to prevail and by necessary implication excluded the application of s. 2 of the Bill of Rights. If it is grossly disproportionate to what would have been appropriate, then it infringes s. 12. 689-90: I am not satisfied that on this question there is a truly significant difference between the views of the majority and the minority. Februar 1975 [3] R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472 R v Smith (Percy) [1976] Crim LR 511, DC Narcotic Control Act, R.S.C. R. v. Widdifield, 6 C.R.L.Q. A convicted person has a right of appeal upon questions of law alone. 22]. Such a result reduces the significance of the absolute prohibition in s. 12 of the Charter and does not afford, in my view, an acceptable approach to a constitutional question. "Trafficking" was defined as meaning importation, manufacture, sale, etc. 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. [para. Is it in accord with public standards of decency or propriety? ) C.A. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. ), 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. 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". The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. Instead, the appellant argued that, in certain cases, the minimum sentence of seven years' imprisonment, solely because of its length, could be so excessive and disproportionate to the offence committed that it would amount to cruel and unusual punishment. The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. L.R. 253 and 255). After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. 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. ), p. 790; and Mitchell, supra). In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. ), on indictment a fine without express limit or two years' imprisonment or both; in neither case can the sanction be said to be light. A punishment will be cruel and unusual and violate. ) Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. (2d) 337; Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 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. This case arose out of a charge of first degree murder. 213 (CA);1979 CanLII 2233 (SK CA);51 CCC (2d) 381;1 Sask R 213, Court of Queen's Bench of Alberta (Canada), Ontario Ontario Court of Justice General Division (Canada). 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. Subscribers are able to see any amendments made to the case. 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. 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. Theme by SiteOrigin. The judgment of Dickson C.J. 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? Res. Since they limited their comments to delineating Parliament's purpose, acknowledging it to be valid and then refusing to interfere, little was said by them as regards the meaning of cruel and unusual treatment or punishment. 1927, c. 144, s. 4, and R.S.C. Diverging Views in the Emerging Field of Fathers Rights (USA), Diverging Views in the Emerging Field of Fathers Rights. 61]. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. 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