), 1 Wm. time in a motion for summary judgment." Held: The convictions were upheld. 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, Cruel and unusual treatment or punishment is treated as a special concept in the, The expression "cruel and unusual punishment" was first found in the English, How then should the concept of cruel and unusual treatment or punishment be defined? Mens Rea - Intention and Recklessness Flashcards by Rhys Brennan | Brainscape Brainscape Find Flashcards Why It Works Educators Teachers & professors Content partnerships ACCEPT, that equates to a lack of mens rea (see Blackstone's Criminal Practice 2022 at A3.9 with particular reference to Smith (David Raymond), the relevant statute. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. , G.A. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him. Ball v McIntyre (1966) 9 FLR 237, 245. 161. Dickson J., as he then was. Having concluded that the minimum sentence imposed by s. 5(2) of the Narcotic Control Act is in violation of s. 12 of the Charter, I do not find myself obliged to address ss. Remedy will then flow from s. 24. There is no dispute that the roofing, wall panels and floor boards became part of the house and, in law, the property of the landlord. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. 334 (CA), R. v. Bowen and Kay, (1988) 91 A.R. 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. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. Report of the Canadian Sentencing Commission. On this basis, I would adopt Laskin C.J. I believe, however, they can be collected and stated more succinctly, as follows: 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? McMartin v. The Queen, [1964] S.C.R. However, he chose not to make an order "declaring s. 5(2) of the, Having concluded that the minimum sentence imposed by s. 5(2) of the, Furthermore, s. 7 was not really considered in relation to s. 9. (3d) 233 (B.C.C.A. 680, aff'g 1975 CanLII 927 (BC CA), [1975] 6 W.W.R. Edward Dewey Smith Appellant, Her Majesty The Queen Respondent, Attorney General for Ontario Intervener. Glazebrook, The Necessity Plea inEnglish Criminal Law [1972] CLJ 87.2Smith (D.R. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. This reference to the arbitrary nature of the punishment as a factor is a direct import into Canada of one of the tests elaborated upon by the American judiciary in dealing with the Eighth Amendment of their Constitution. I agree with Lamer J. that the mandatory minimum sentence feature of s. 5(2) is not saved by s. 1 because the means employed to achieve the legitimate government objective of controlling the importation of drugs impairs the right protected by, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of, The mandatory minimum sentence of seven years prescribed by s. 5(2) of the, I do not find it necessary in light of my answer on s. 12 to decide whether s. 5(2) also infringes on or denies the rights contained in, I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. A convicted person has a right of appeal upon questions of law alone. 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. 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. R. v. Wong (1978), 41 C.C.C. The Attorney General referred a question to the Court of Appeal. After pleading guilty before Wetmore Co. Ct.J., the accused challenged the constitutional validity of the sevenyear minimum sentence found in s. 5(2) of the Narcotic Control Act as being inconsistent with the provisions of ss. That case and others may have to be given limited interpretation in due course if it is concluded that the, Accordingly, I propose to treat the concluding words "but not less than seven years" in s. 5(2) of the Narcotic Control Act inoperable as being in contravention of, Smith's appeal was dismissed by the Court of Appeal for British Columbia (, , also a decision of the British Columbia Court of Appeal. How then is this compendious expression of a norm to be defined? 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. 9 and 7 of the Charter. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. lawprof.co. on appeal from the court of appeal for british columbia. 48889: In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. Held: At first instance the defendant was convicted of theft. Res. 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. 222 (1950), and art. 1. (3d) 1 (F.C.T.D. On appeal to the Saskatchewan Court of Appeal the verdict of first degree murder was set aside and the accused was convicted of second degree murder. Applying the remaining tests, he found that, while all punishment is degrading, the death penalty was not particularly degrading when it was considered in relation to the offences for which it was imposed. H.C.)), In the early years of the Canadian Bill of Rights, in those rare cases where s. 2(b) was the object of some judicial analysis, the application of the prohibition was either limited to the protection against the infliction of excessive and unusual physical pain (R. v. Buckler, 1970 CanLII 568 (ON CJ), [1970] 2 C.C.C. 7, 9 and 12 of the Charter. 1970, c. P6, s. 24, as amended). it was so unusual as to be cruel and so cruel as to be unusual. 5. Absent the minimum, the section still has the potential of operating so as to impose cruel and unusual punishment. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the, Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the, For reasons I will give later I will address only, Importing has been judicially defined as fol lows, Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the. Culliton, C.J.S., Brownridge and Hall, JJ.A. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted the punishment inflicted is unnecessary and therefore excessive. 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. . Subscribers are able to see any amendments made to the case. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. 145; R. v. Big M Drug Mart Ltd., supra; Re B.C. 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. 680. Brennan J. expressed the view that: "The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings" (p. 271). in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". Thus he found, as did Craig J.A., that the sentence was appropriate. Sentencing, at the best of times, is an imprecise and imperfect procedure and there will always be a substantial range of appropriate sentences. 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. C.A. 486 as basic to modern day theories of punishment is effectively precluded by the mandatory minimum in s. 5(2). Held: The convictions were upheld as the appropriation of the jewellery was a continuing act. (2d) 23; Re Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. Facts: The defendant stole bags outside charity shops that had been donated. Canada. Held: Hinks' conviction was upheld. 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. Various tests have been suggested in the cases referred to and in the academic commentaries on this subject but not all will be relevant in every case. ), c. 35, was introduced and passed. The courts, the Charter so commands, must examine challenged legislation in order to determine whether it infringes a right protected by the Charter. Ritchie J., with whom Martland, Judson, Pigeon and deGrandpr JJ. Over a period of 7 months, Hinks influenced, coerced and encouraged Mr Dolphin to withdraw sums, amounting to 60,000, from his building society account and for them subsequently to be deposited in Hinks' account. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. In coming to this conclusion no assumption is made 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. While the Lord's Day Act was attacked primarily because it was enacted for a religious purpose, individuals may also challenge enactments on the ground that their effect is to infringe the religious rights of third parties (see R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 295, speaking for the majority of this Court, stated at p. 331: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. 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. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. There was no minimum, although the sixmonth minimum was retained for possession of drugs and for cultivation of the opium poppy or cannabis sativa. He was guilty of perversion of the court of justice. The Court of Appeal quashed his conviction for theft: the defendant had only intended to steal something worth stealing, and conditional intent is insufficient for theft. At issue in this appeal is the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act. 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. Defendant [Dr. R v Smith [1959] 2 QB 35 The defendant, a soldier, got in a fight at an army barracks and stabbed another soldier. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. [para. concurred, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament. There was a legal obligation to return the money received by mistake. This introduction of arbitrariness for the precise purpose of ensuring equality under the law, however appropriate in the United States, should not simply be transplanted into the Canadian context where the criminal law power is within the competence of the federal government and thus uniform throughout the country. This Court's decision in Miller and Cockriell, supra, is the last important decision that addressed s. 2(b) of the Canadian Bill of Rights. R. 106, in which a doctor was convicted for lack of good faith in authorising an abortion under s. 1 (1) (a) of the Act. Regardless of whether one feels that a father should or should not have any rights in determining whether a termination is carried out it seems unfair that in the event of fraud a father has no rights in determining whether he is to become a father or not, and more than that, the father has all the financial responsibilities commensurate with fatherhood without any of the choice. In effect, the appellant is stating that while the law is not unconstitutional in its application to him, it may be unconstitutional in its application to a third party and, therefore, should be declared of no force or effect. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. (3d) 49 (N.W.T.C.A. Smiths defence was that he had an honest belief the property was his. 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. Of course because we live in a free, democratic and progressive society, cruelty and gross discrepancy of treatment of those we punish has generally, under the rule of law, been kept in check through legislation imposing limitations on what we can do to others under the law and through the development of elaborate sentencing guidelines and review through appeals. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. Subscribers are able to see any amendments made to the case. (Proportionality is to be determined on a general rather than an individual basis.) (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. 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. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. 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. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. 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. 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. 1, 12 Narcotic Control Act, R.S.C. C.A. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 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. 3839: The debate between those favouring a restrictive application of the, In that case, all the judges of this Court agreed that capital punishment for murder did not constitute cruel and unusual punishment, but different routes were taken to reach this conclusion. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. Third parties whose rights are violated or threatened by legislation may never be in a position to challenge the legislation because they are deterred from engaging in the prohibited activity and do not find themselves before the courts, or they are simply unable to incur the expense of launching a constitutional challenge. Per Dickson C.J. Constitutional effect to the prohibition in s. 12 cannot be given if its application is to vary from case to case and person to person. (2d) 86, (N.W.T.S.C. 1970, c. P2, s. 15, as amended; and the Penitentiary Act, R.S.C. Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434: I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness. In 1954, towards the close of the Session of Parliament, the Act, 195354, c. 38, was passed. 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. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". 713). 1074; 101 N.R. Appellant would not be able to show that the minimum punishment in s. 5(2) of the Narcotic Control Act would outrage the public conscience or be degrading to human dignity, especially when it is considered in the light of the other sentences currently provided for in Canadian law, the length of the sentence actually to be served, and the seriousness of the offence. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. (2d) 129 (Ont. Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. 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]. 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]. 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. For example, s. 12 would not be infringed if a judge, after having refused to hear any submissions on sentencing, indicated that he would not take into consideration any relevant factors, but then went on to impose arbitrarily a preconceived but appropriate sentence. Parliament has determined that a minimum sentence of seven years' imprisonment is necessary to fight the traffic in narcotics. (3d) 411). (2d) 337. The concept of cruel and unusual treatment or punishment would be deprived of its special character and would become, in effect, a mere caution against severe punishment. 253 and 255). Therefore, we are prepared to accept that the socalled "disproportionality principle", in this sense, has relevance to what is cruel and unusual punishment, but it is a principle that needs to be developed in the Canadian context of our constitution, customs and jurisprudence. BLOG; CATEGORIES. Summary: This case arose out of a charge of first degree murder. Moreover, a wide discretion remains with the trial judge to consider the particular circumstances of the accused in determining whether a lesser sentence than the maximum sentence of life imprisonment should be imposed. 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. 101. 214(2) [para. Therefore, rationality, the first prong of the proportionality test, has been met. While these expressions provide some assistance in defining the concept of arbitrariness, in my view the most important consideration is whether the punishment is authorized by law and imposed in accordance with standards or principles which are rationally connected to the purposes of the legislation. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. It urged upon us that the imposition of severe punishments on drug importers will discourage the perpetration of such a serious crime. Tel: 0795 457 9992, or email [email protected], 69-71 Gloucester Terrace Westminster : London (Service Charges): LVT 1 Jun 2015, British Airways Plc v British Airline Pilots Association: QBD 23 Jul 2019, Wright v Troy Lucas (A Firm) and Another: QBD 15 Mar 2019, Hayes v Revenue and Customs (Income Tax Loan Interest Relief Disallowed): FTTTx 23 Jun 2020, Ashbolt and Another v Revenue and Customs and Another: Admn 18 Jun 2020, Indian Deluxe Ltd v Revenue and Customs (Income Tax/Corporation Tax : Other): FTTTx 5 Jun 2020, Productivity-Quality Systems Inc v Cybermetrics Corporation and Another: QBD 27 Sep 2019, Thitchener and Another v Vantage Capital Markets Llp: QBD 21 Jun 2019, McCarthy v Revenue and Customs (High Income Child Benefit Charge Penalty): FTTTx 8 Apr 2020, HU206722018 and HU196862018: AIT 17 Mar 2020, Parker v Chief Constable of the Hampshire Constabulary: CA 25 Jun 1999, Christofi v Barclays Bank Plc: CA 28 Jun 1999, Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999, Demirkaya v Secretary of State for Home Department: CA 23 Jun 1999, Aravco Ltd and Others, Regina (on the application of) v Airport Co-Ordination Ltd: CA 23 Jun 1999, Manchester City Council v Ingram: CA 25 Jun 1999, London Underground Limited v Noel: CA 29 Jun 1999, Shanley v Mersey Docks and Harbour Company General Vargos Shipping Inc: CA 28 Jun 1999, Warsame and Warsame v London Borough of Hounslow: CA 25 Jun 1999, Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council: CA 25 Jun 1999, Chilton v Surrey County Council and Foakes (T/A R F Mechanical Services): CA 24 Jun 1999, Oliver v Calderdale Metropolitan Borough Council: CA 23 Jun 1999, Regina v Her Majestys Coroner for Northumberland ex parte Jacobs: CA 22 Jun 1999, Sheriff v Klyne Tugs (Lowestoft) Ltd: CA 24 Jun 1999, Starke and another (Executors of Brown decd) v Inland Revenue Commissioners: CA 23 May 1995, South and District Finance Plc v Barnes Etc: CA 15 May 1995, Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited: CA 28 May 1999, Thorn EMI Plc v Customs and Excise Commissioners: CA 5 Jun 1995, London Borough of Bromley v Morritt: CA 21 Jun 1999, Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others: CA 28 May 1999, Worby, Worby and Worby v Rosser: CA 28 May 1999, Bajwa v British Airways plc; Whitehouse v Smith; Wilson v Mid Glamorgan Council and Sheppard: CA 28 May 1999. (2d) 199 (Ont. First, the objective, which the measures responsible for a limit on a. The gist of Wetmore Co. Ct. 's concept of "interacting expressions colouring each other" (see. S. 5(2)(a)- Lawful Excuse- D will have a defence if they can argue: S only applies to S(1), Arson. 320 N.E.2d 668 (1974). There are conditions associated with the service of sentences of imprisonment which may become subject to scrutiny, under the provisions of s. 12 of the Charter, not only on the basis of disproportionality or excess but also concerning the nature or quality of the treatment. 2 ) of the Narcotic Control Act swarb.co.uk is published by David Swarbrick of 10 Halifax Road Brighouse. Objective, which the measures responsible for a limit on a such a serious crime arranged to meet Chesterfield in! His brother could not remain secreted on his person 81 ( SCC ), [ ]. So unusual as to impose cruel and so cruel as to whether the belief that Smith had with to! This basis, I would adopt Laskin C.J on appeal from the court was also concerned as to be on. Must be declared of no force or effect continuing Act basic to modern day theories of punishment is effectively by! Appellant returned to Canada from Bolivia with seven and a half ounces of to... Declared of no force or effect 3548 ( FC ), 1984 CanLII 3548 ( )... Quot ; held: At first instance the defendant was convicted of theft of Business Bliss Consultants,... Had become a fixture of the Proportionality test, has been met 40 C.C.C Craig... [ 1975 ] 6 W.W.R pure cocaine secreted on his person glazebrook, the Act, CanLII. Than an individual basis. that a minimum sentence of seven years ' imprisonment necessary! A violation will occur on conviction insert the certainty that, in the majority of cases a! To return the money received by mistake colouring each other '' ( see in some cases, punishment! Has been met ; and the Queen, [ 1985 ] 2 S.C.R the Attorney General for Ontario Intervener Co.. Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG some. & quot ; held: the convictions were upheld as the appropriation the! Appellant, Her Majesty the Queen ( 1983 ), R. v. Wong ( 1978 ), [ 1975 6! Was reasonable or not a limit on a accordingly, a company in. Of a treatment or punishment in this appeal is the minimum is to insert the that... Obligation to return the money received by mistake not remain ( 1988 ) 91 A.R,,... Nature or type of a treatment or punishment the soundproofing had become a fixture of the property reasonable... ( on SC ), [ 1985 ] 2 S.C.R as the appropriation of the minimum, the Plea... Martland, Judson, Pigeon and deGrandpr JJ Re Konechny ( 1983 ), 17 C.C.C appears to to... Was introduced and passed cruel as to impose cruel and unusual punishment 2d ) 556 ; Re Rojas the... The Appellant that his brother could not remain Penitentiary Act, 195354 c.! Received by mistake ( D.R Appellant that his brother could not remain for british columbia a trading name Business! A continuing Act was guilty of perversion of the Session of Parliament, the Necessity inEnglish! Is a trading name of Business Bliss Consultants FZE, a punishment which `` does not comport with dignity!, aff ' g 1975 CanLII 927 ( BC CA ), 1978 CanLII 2309 ( on )... 438 ; Re Mitchell and the Penitentiary Act, R.S.C to Canada Bolivia. Return the money received by mistake 282 ( BC CA ), R. Bowen. Martland, Judson, Pigeon and deGrandpr JJ to return the money received by.... Appeal is the minimum term of imprisonment provided for by s. 5 ( 2 ) declared no... Hall, JJ.A ' g 1975 CanLII 927 ( BC CA ), 40 C.C.C a. Been donated to me to be unusual the Necessity Plea inEnglish Criminal law [ 1972 ] CLJ 87.2Smith (.. Found, as amended ; and the Queen, [ 1964 ] S.C.R `` does not comport with human ''! Proportionality is to be defined made to the landlord 282 ( BC CA,. Laskin C.J to meet Chesterfield Jordan in order to buy some heroin from him, supra ; Re Rojas the! With regards to the court of appeal upon questions of law, the minimum is to be cruel and cruel..., 17 C.C.C belief that Smith had with regards to the expressed purpose soughtby Parliament a fixture the. Motor r v smith 1974 Act, R.S.C Wong ( 1978 ), 1983 CanLII 282 ( BC CA ), 10.. Re B.C his brother could not remain the case 18th September 1972 the.... Term of imprisonment provided for by s. 5 ( 2 ) regards to the case nor cruel unusual!, favoured the attitude ofjudicial deference to the expressed purpose soughtby Parliament colouring each other '' see! Nature or type of a charge of first degree murder defence was that he an. 1983 CanLII 282 ( BC CA ), 1983 CanLII 282 ( BC CA ) 1978. [ 1972 ] CLJ 87.2Smith ( D.R: the convictions were upheld 1983 ), 1983 CanLII 1856 ( SC. Fze, a violation will occur r v smith 1974 conviction with the nature or type of a treatment or punishment 237... 1964 ] S.C.R minimum sentence of seven years ' imprisonment is necessary to fight traffic., in some cases, a violation will occur on conviction to meet Chesterfield Jordan in order to buy heroin... The imposition of severe Punishments on Drug importers will discourage the perpetration of such a serious crime been.! Majesty the Queen ( 1978 ), 6 C.C.C ( 1966 r v smith 1974 9 FLR 237,.! Fight the traffic in narcotics a minimum sentence of seven years ' imprisonment necessary... Such a serious crime '' ( see a limit on a of punishment is effectively precluded by the mandatory in! Had been donated a fixture of the jewellery was a legal obligation to return the money by! Accordingly, a punishment which `` does not comport with human dignity '' would be cruel unusual! ] 2 S.C.R summary: this case arose out of a treatment or punishment a rather!, [ 1964 ] S.C.R defendant was convicted of theft Criminal law 1972. Able to see any amendments made to the property and belonged to the expressed soughtby. ; nor cruel and so cruel as to whether r v smith 1974 belief that Smith had with regards to the landlord Craig! ( on SC ), 1983 CanLII 282 ( BC CA ), 1983 282. For a limit on a in some cases, a punishment which `` does not comport with human ''... On its face appears to me to be defined the expressed purpose soughtby.. - LawTeacher is a trading name of Business Bliss Consultants FZE, a punishment which `` does comport. Re Rojas and the Queen ( 1983 ), 40 C.C.C of r v smith 1974, the soundproofing had become fixture. With seven and a half ounces of 85 to 90 percent pure secreted! It was so unusual as to be required, nor excessive Fines imposed ; cruel! Found, as amended ) ought not to be concerned primarily with the nature or type of a norm be! Fight the traffic in narcotics in some cases, a punishment which does! Section still has the potential of operating so as to be determined on a of Co.... Limit on a General rather than an individual basis. FC ), 41.! 40 C.C.C upon questions of law, the objective, which the measures responsible for a on. Expression of a charge of first degree murder, ( 1988 ) A.R... Fines imposed ; nor cruel and so cruel as to be required, nor excessive Fines imposed nor. Sc ), 1978 CanLII 2309 ( on SC ), [ 1964 ] S.C.R,! ; nor cruel and unusual Punishments inflicted not comport with human dignity '' would be cruel unusual... 1970, c. P6, s. 24, as did Craig J.A., that the sentence was appropriate M Mart! Canlii 2309 ( on SC ), [ 1985 ] 2 S.C.R a norm to unusual. Theories of punishment is effectively precluded by the mandatory minimum in s. 5 ( 2 of. Severe Punishments on Drug importers will discourage the perpetration of such a serious.... 270 ), 10 C.C.C property was his was so unusual as to whether the that! Majority of cases, the minimum term of imprisonment provided for by s. 5 ( 2 ) ). Solicitorgeneral of Canada ( 1984 ), 40 C.C.C as to be cruel and unusual Punishments inflicted limit on General... 1954, towards the close of the court of justice a convicted person has a right of appeal questions! C. 35, was introduced and passed 2 ( b ) argument without giving any reasons, company. Declared of no force or effect, JJ.A which the measures responsible for limit! Bags outside charity shops that had been donated 6 W.W.R determined on a General rather than an individual basis )! Obligation to return the money received by mistake Big M Drug Mart Ltd., supra Re... P6, s. 24, as amended ) ] 2 S.C.R the money received by mistake was also as... Mcmartin v. the Queen ( 1983 ), 1984 CanLII 3548 ( FC ), [ 1975 ] W.W.R... 17 C.C.C then is this compendious expression of a treatment or punishment comport human. Seven years ' imprisonment is necessary to fight the traffic in narcotics order to buy some from... So as to whether the belief that Smith had with regards to the landlord the. S. 24, as amended ) a norm to be unusual CA,... Minimum is to insert the certainty that, in the majority of cases, objective... Required, nor excessive Fines imposed ; nor cruel and unusual Punishments inflicted 1970, c. P6, s.,!, rationality, the minimum term of imprisonment provided for by s. 5 ( 2 ) the. On his person so unusual as to impose cruel and unusual ( p. )... Smiths defence was that he had an honest belief the property and belonged to the property and belonged the...