r v smith 1974

This type of national evil requires the opinion of Parliament as to appropriate penalties, not that of individual Judges. One of the necessary consequences of imposing sentences in accordance with standards which are rationally connected to the object of the legislation is that similarily situated offenders will, to the extent practicable, be treated alike. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. Once there the treatment given was described as palpably wrong. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. Simple and digestible information on studying law effectively. 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. In this judgment, Heald J., of the Trial Division of the Federal Court, declared that the prison conditions to which certain prisoners were subjected in the solitary confinement unit of the British Columbia Penitentiary amounted to cruel and unusual treatment or punishment. and Lamer J. was delivered by. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment. It is the judge's sentence, but not the section, that is in violation of the, In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the. 39]. in Miller and Cockriell, supra. 2200 A (XXI), 21 U.N. GAOR, Supp. 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. The constitutional question posed in this case, in the absence of a uniform application of the prohibition, could only be answered: "sometimes yes, and sometimes no". 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. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. 's statement of the test for cruel and unusual punishment under s. 12 of the Charter, including his approach to the application of disproportionality and arbitrariness. 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. In coming to this conclusion, however, I make no assumption as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. C.A. Section 12 might also be invoked to challenge other kinds of treatment, such as the frequency and conditions of searches within prisons, dietary restrictions as a disciplinary measure, corporal punishment, surgical intervention including lobotomies and castration, denial of contact with those outside the prison, and imprisonment at locations far distant from home, family and friends, a condition amounting to virtual exile which is particularly relevant to women since there is only one federal penitentiary for women in Canada. 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. 63-5, September 2000. (a)authorize or effect the arbitrary detention, imprisonment or exile of any person; (b)impose or authorize the imposition of cruel and unusual treatment or punishment; Sections 7, 9 and 12 of the Charter guarantee the following rights: 7. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. 's interpretation of the phrase as a "compendious expression of a norm". 152, 68 C.C.C. vLex Canada is offered in partnership with: - The Saskatchewan Court of Appeal discussed the meaning of the word "planned" as found in s. 214(2) of the Criminal Code of Canada, R.S.C. 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 s. 12 of the Charter. They must not be arbitrary, unfair or based on irrational considerations. 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. 68990: The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. 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. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. 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. Saunders v Herold (1991) 105 FLR 1. Remedy will then flow from s. 24. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the, 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. I do not think it wise to address s. 9 without the benefit of the views of the courts below with regard to its relationship to s. 7. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. 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. was followed by Borins Co. Ct. J. of, . L.R. 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. R gegen Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 Alle ER 651, CA (Civ Div) R gegen Smith, nicht gemeldet, 13. The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. 713). The Court of Appeal for Ontario ((1976), 1976 CanLII 600 (ON CA), 30 C.C.C. 107. Solicitor for the intervener: Attorney General for Ontario, Toronto. 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. Facts: The defendant stole bags outside charity shops that had been donated. , 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. But the wording of the section and the schedule is much broader. See also . R. v. Reynolds, 44 C.C.C. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. While no such case has actually occurred to my knowledge, that is merely because the Crown has chosen to exercise favourably its prosecutorial discretion to charge such a person not with the offence that that person has really committed, but rather with a lesser offence. r v smith (john) [1974] 1 all er 376 r v bourne [1938] 3 all er 615 r v d [1984] 3 wlr 186 r v reid [1972] 2 all er 1350 r v timmins [1858-61] 8 cox cc 401 r v robins [1884] 174 er 890 r v white [1871] lr 1 ccr; 12 cox cc 83 queen v papadimitropulous kaitamakyi v r r v flattery r v linekar r v marsden r v pressy alawusa v odusote bolduc & . 3d 1164, 2005 (Ill. App. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. The prohibition is in absolute terms. 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. 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