Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter. The chilling effect will be present in respect of any law or practice which has the effect of seriously discouraging the exercise of a constitutional right: see North Carolina v. Pearce, 395 U.S. 711 (1969), and Gooding v. Wilson, 405 U.S. 518 (1971), at p. 521. (3d) 193 (Ont. Section 1 (1) of the Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private. If two offenders have identical histories and characteristics and have committed the same offence in the same circumstances, legislation could not mandate that they be given different punishments. 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. It was therefore open to our courts to interpret the laws of Canada and to choose between various meanings so as to avoid the infliction of cruel and unusual punishment. If there be a rational reason for the policy then I do not think it is for a judge to say that the policy is capricious, unreasonable or unjustified. Reasons The defense claimed that in order to convict for murder it would have to be proven that it was Smith's actions that caused the death. 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). Criminal Code, R.S.C. Dubai: From a small village of pearls to a thriving concrete metropolitan: unprecedented growth, but at what cost to human life? She was subsequently convicted of theft and appealed on the ground that the sums given were gifts which were valid in civil law. After a jury trial the accused was found guilty as charged and sentenced to life imprisonment. 121, per Rand J., at pp. 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. 186, refd to. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. (1978), 10 Ottawa L.R. as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). In Phillips v. Irons 354 Ill. App. 3839: Assuming that disproportionality is a matter to be considered, it is to be applied, certainly in the first instance, to "the law of Canada" that is to be "construed or applied". The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act is to be tested, in the light of s. 12 of the Charter, against the general seriousness of the offence created by s. 5(1) or against the relative seriousness of the whole range of the conduct to which the offence could conceivably apply. and Lamer J.: The minimum sentence provided for by s. 5(2) of the, The undisputed fact that the purpose of s. 5(2) of the, The minimum term of imprisonment provided for by s. 5(2) of the, The section cannot be salvaged by relying on the discretion of the prosecution not to charge for importation in those cases where conviction, in the opinion of the prosecution, would result in a violation of the, The section, too, cannot be salvaged under, The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under, Le Dain J.: Imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of. 47]. (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. 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. Subscribers are able to see a visualisation of a case and its relationships to other cases. 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. 1019 (1893), at p. 1021). FREE courses, content, and other exciting giveaways. She had noticed that she had received more than she was entitled to but did not say anything to her employer. 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. Remedy will then flow from s. 24. [para. 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, . However, the pursuit of a constitutionally valid purpose is not, in and of itself, a guarantee of constitutional validity. In view of the careful and extensive consideration given this matter by Parliament and the lack of evidence before this Court suggesting that an adequate alternative to the minimum sentence exists which would realize the valid social aim of deterring the importation of drugs, I cannot find that the minimum sentence of seven years goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives. US States (36975K) Current Events (51K) Celebrity . In this latter regard I share the view of Mr. Justice Robertson that, having regard to the fact that the death penalty for murder had been a part of the law of England from time immemorial and that, at the time when this murder was committed and the trial was held, it had been a feature of the criminal law of Canada since Confederation, it cannot be said to have been an "unusual" punishment in the ordinary accepted meaning of that word. There is an The assessment of alternative punishments cannot, of course, be carried out with precision, since our knowledge of the efficacy of any punishment is at best rudimentary. Ct., Sept. 23, 1985, unreported, provide a good example, at p. 15: 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. 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. Co. Ct.), at p. 209; and by the Ontario Court of Appeal in Shand, supra, where Arnup J.A., writing for the court, stated at pp. (2d) 23) 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. Does the punishment go beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives? 680. (2)Every person who violates subsection (1) is guilty of an indictable offence and is liable to imprisonment for life but not less than seven years. 's statement of the test for cruel and unusual punishment under, The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the, In conclusion, I agree with Lamer J. that imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of. It has been aptly observed that 'Of all crimes manslaughter appears to afford most difficulties of definition'. A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics: (1)The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity; (2)The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or. As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under s. 12 of the Charter, does not appear to arise on the facts of the case. [para. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 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. While the interpretation was given in respect of the Canadian Bill of Rights, it is equally applicable to the phrase as used in the Charter. There are, in my view, three important components of a proportionality test. [Emphasis added.]. BLOG; CATEGORIES. & M sess. Motor Vehicle Act, supra; and R. v. Oakes, supra, this Court indicated that once there has been a prima facie violation of the Charter the burden rests upon the authorities to salvage the legislative provision in question. (3d) 49; R. v. Simon (No. 522, refd to. The first minimum sentence of imprisonment had been enacted in 1922 (c. 36, s. 2(2)); it was six months. The purported certificate in the present case is a nullity being granted in excess of jurisdiction. This is what offends s. 12, the certainty, not just the potential. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. (3d) 233, also a decision of the British Columbia Court of Appeal. Where do we Look for Guidance?" There are at least three ways in which the imposition of a punishment may be said to be arbitrary: the legislative decision to enact the law which provides for punishment could be arbitrary; the legislation on its face could impose punishment in an arbitrary manner; and finally, a body empowered to impose punishment could, in practice, impose the punishment arbitrarily. A separate section created an offence of "dealing in" drugs with unauthorized persons, with lesser penalties. 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. (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? Subscribers are able to see a list of all the documents that have cited the case. 2200 A (XXI), 21 U.N. GAOR, Supp. It would, under the guise of protecting individuals from cruel and unusual punishment, unduly limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. 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. 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 concept was considered by some to have become obsolete by the early twentieth century (see Hobbs v. State, 32 N.E. dealt thoroughly and exclusively with s. 9. Appeal allowed. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. 22 In, and examples, see the classic article by P.R. 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. Wikibrief. (Proportionality is to be determined on a general rather than an individual basis.) It shocked the communal conscience. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", Trop v. Dulles, 356 U.S. 86 (1958), at p. 101. However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge. The Court of Appeal held that there was no evidence upon which the jury could conclude that the killing was planned. In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence. Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships Plummer put a knife to his throat and Haines punched him to the ground. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. 's interpretation of the phrase as a "compendious expression of a norm". We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Yet, there is a law in Canada, s. 5(2) of the. (3d) 306 (Ont. 8 to 14 was commented on and where the "principles of fundamental justice" were defined as providing more than just procedural protection under the section. Importing has been judicially defined as fol lowsin Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 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. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. 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