r v smith 1974

39; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. 25]. The law of England gives him no such right; the Abortion Act 1967 contains no such provision. R v Pittwood (1902), R v Smith (1869) 307, and Miller and Cockriell, supra, the court took into account the overall objective of Parliament in the protection of society. With the landlords permission, he installed some sound equipment and soundproofing material. Held: He was liable for theft of his own car since the car was regarded as belonging to the service station as they were in possession and control of it. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. This point was made by Stewart J. in, The word "arbitrary" has been defined in a variety of ways, including "capricious", "frivolous", "unreasonable", "unjustified", and "not governed by rules or principles", (see, In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the, Finally, as far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal. After a review of statistics and other data, McIntyre J.A. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. It was "unusual" because of its extreme nature. ), refd to. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. In my view, the protection afforded by s. 12 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. He will be eligible for a full parole after serving onethird of his sentence (28 months), and will be entitled to release on mandatory supervision after serving twothirds of his sentence (56 months), unless there are reasonable grounds for believing that he is likely to commit an offence causing the death of, or serious harm to, another person upon his release (Parole Regulations, SOR/78428, s. 5 as amended; Parole Act, R.S.C. (1978), 10 Ottawa L. Rev. 10]. Where do we Look for Guidance?" was not satisfied by the Crown's efforts to salvage the section. Powell J., speaking for the majority, held that the Eighth Amendment "prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed" (p. 284). In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. 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. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. The complexity of definition is associated with a peculiar . Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. 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. As time passed, the civilizing influence of the late nineteenth and twentieth centuries eliminated, or at least greatly reduced, the danger of such barbarous punishments. In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that "these various additions to the house were anything but their own property But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. He rejected the suggestion that the Court should consider whether the punishment was acceptable to a large segment of Canadian society because this appeared to be asking the Court to define cruel and unusual punishment by a "statistical measure of approval or disapproval", an avenue of inquiry on which the Court should not embark (p. 692). 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. To place stress on the words "to outrage standards of decency" is not, in my view, to erect too high a threshold for infringement of s. 12. 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 Narcotic Control Act, is degrading to human dignity, unnecessary for the achievement of a valid social aim, or arbitrary. o R v Nicholls 1874- child died after moving in with grandmother. 384, 13 C.C.C. The facts of the case are sufficiently set out in the reasons of Lamer J. and I will not repeat them. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. Since the complaint is solely as to the duration of the minimum sentence provided in s. 5(2), it becomes relevant to consider the length of the sentence as it will be served. Employing it here, and considering what was said, with respect to the enactment of s. 5(2) of the, Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the, He was uncertain as regards the proper approach to be taken when assessing whether legislation, which, . Suffering behind female sex workers: Why we should oppose legalisation of prostitution. Held: There was an appropriation even though he acted with the authority of the shop manager. 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 appellant appealed both his convictions and sentence. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. In my opinion the words "cruel and unusual" as they are employed in s. 2(b) of the Bill of Rights are to be read conjunctively and refer to "treatment or punishment" which is both cruel and unusual. In his opinion, the non constitutional nature of the Canadian Bill of Rights required the application of traditional rules of interpretation. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? The sevenyear minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. R v Smith - 1974 300 words (1 pages) Case Summary 27th Jun 2019 Case Summary Reference this In-house law team Jurisdiction / Tag (s): UK Law Share this: LinkedIn R v Smith [1974] QB 354 Damage to property - mistake - Criminal Damage Act 1971 Facts Smith was the tenant of a ground floor flat. 60]. 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. Plummer put a knife to his throat and Haines punched him to the ground. The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. In other words, the appellant is arguing that legislation which restrains the discretion of the trial judge to weigh and consider the circumstances of the offender and the circumstances of the offence in determining the length of sentence is arbitrary and, therefore, cruel and unusual. Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. It also extends to punishments which are, to use his words, "grossly disproportionate". R v Smith [1974] QB 354, [1974] Crim. 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. (No. (2d) 199 (Ont. But that does not mean that judges have been authorized to substitute their opinion for that of the Legislature which under our democratic system is empowered to enunciate public policy. The court in assessing whether a sentence is grossly disproportionate must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to determine what range of sentences would have been appropriate to punish, rehabilitate, deter or protect society from this particular offender. ), pp. It brings within the prohibition in s. 12 not only punishment imposed by a court as a sentence, but also treatment (something different from punishment) which may accompany the sentence. 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. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. 's interpretation of the phrase as a "compendious expression of a norm". Held: Although their is a traditional view that human corpses cannot belong to anyone, body fluids can be stolen. Under the first branch of the test I propose, the appellant would have to show that the length of the sentence would outrage the public conscience or be degrading to human dignity. The judicial discretionstill a very wide oneis then exercised, within the framework of the penalties legislated, to decide what penalty is appropriate for the particular offender in all of the circumstances of the particular case. The majority of the Court of Appeal upheld the eight year sentence imposed by the trial judge. It seems to me that the law is not clear. (2) Is it unnecessary because there are adequate alternatives? But I do not share my colleague's anxiety to keep the two sections mutually exclusive. The, In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. 10. . These comments clearly demonstrate that Laskin C.J. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. R. v. Reynolds, 44 C.C.C. 486; R. v. Dick, Penner and Finnigan, 1964 CanLII 693 (MB CA), [1965] 1 C.C.C. 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. (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. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. (3d) 138 (T.D. 1045: cruel and unusual punishment R v Smith (1992), [1992] 2 S.C.R. Facts: The Defendant, a student of engineering, took an exam paper with the intention of returning the paper having used the information gained in order to cheat in his exam. 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. Fourth, where a punishment is not excessive and serves a valid legislative purpose, it still may be invalid if popular sentiment abhors it [p. 332]. (dissenting) This appeal concerns the question whether s. 5(2) of the Narcotic Control Act, R.S.C. Ct.); R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. [para. , Eighth Amendment, Fourteenth Amendment. This desirable purpose may be served in the actual sentencing process by the exercise of judicial discretion within the wide range of sentencing options not coming within the s. 12 prohibition. ", As Lamer J. has indicated at p. 1069 of his judgment, these are the tests which have been generally applied in the cases heard so far under, Dealing with the first test, is the punishment of such character or duration as to outrage the public conscience or be degrading to human dignity? You also get a useful overview of how the case was received. (Proportionality is to be determined on a general rather than an individual basis.) 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. The victim was taken to receive medical attention, but whilst being carried to the hospital was dropped twice by those carrying him. However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. By installing these items, in law, they became the property of the landlord, as they formed part of the flat. The soldier died. With consent of the land lord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. 22]. He took the car without paying for the repairs. I have already stated, in respect of s. 12, that it is my view that s. 5(2) of the Narcotic Control Act does not impose punishment arbitrarily. (3d) 49 (N.W.T.C.A. 's concept of "interacting expressions colouring each other" (see. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. (3d) 324 (Ont. 102 (B.C.S.C. in his concurring, minority judgment in Miller and Cockriell. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. 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. 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. In any event, Lambert J.A. Because this is not a sentence appeal and because there was no suggestion that the sentence of eight years imposed on the appellant was cruel and unusual, I would normally dismiss this appeal. He would have imposed a sentence of five years' imprisonment. Even though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. 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. Fc ), 8 C.C.C part of the legislation the drug trade, is clearly one of Charter. Me that the law of England gives him no such right ; the Abortion Act 1967 contains no such.., 1964 CanLII 693 ( MB CA ), 1985 CanLII 1867 ( NL CA ), 40 C.C.C clearly... 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Although their is a traditional view that human corpses can not belong to anyone, body fluids can be.. Results, R. v. Dick, Penner and Finnigan, 1964 CanLII 693 ( MB CA ), 10.... 1984 CanLII 3548 ( FC ), 10 C.C.C case was received v. Dick, Penner and Finnigan, CanLII. May result in effects which deprive Canadians of their Rights guaranteed under the Charter which deprive Canadians their. A knife to his throat and Haines punched him to the purpose and of! Piche v. SolicitorGeneral of Canada ( 1984 ), 1978 CanLII 2309 ( ON SC ), C.C.C! Question whether s. 5 ( 2 ) of the Court of Appeal upheld the eight year sentence imposed the! 'S efforts to salvage the section, McIntyre J.A Queen ( 1978 ), [ 1992 ] S.C.R... 1967 contains no such provision paying for the repairs the legitimate purposes of.... ; R. v. Turningrobe ( R.A. ), 1984 CanLII 3548 ( FC ), 8 C.C.C guilty as and! Nicholls 1874- child died after moving in with grandmother ON SC ), ( 2007 409... 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