r v smith 1974

(2d) 196 (B.C.C.A. I am prepared to accept this premise, but I am unable to agree that the conclusion that they urge is wellfounded. He was acquitted. There is therefore no basis for allowing the appellant to invoke in the present appeal the rights of a hypothetical third party in order to challenge the validity of legislation. Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill L.J. Smith, R v [1979] (Crown Court) Speck, R v [1977] 2 ALL ER 859 (CA) Stone and Dobinson, R v (1977) 1 QB 354 (CA) Yuthiwattana, R v (1984) 16 HLR 49 (CA) Subscribe on YouTube. The judgments of the majority, particularly those of Brennan J. and Marshall J., sought to define a series of principles upon which the constitutional validity of punishments could rest. If that prohibition is not confined within definite limits, if it may be invoked by the courts on an individual casebycase basis according to judicial discretion, then what is cruel and unusual in respect of "A", on one occasion, may become acceptable in respect of "B" on another occasion. If their importation is prohibited, with heavy penalties for breach, the drugs cannot get into the country. 5, 9, as am. 471, perMcIntyre J., speaking for the majority, at pp. For these reasons, the minimum imprisonment provided for by s. 5(2) breaches s. 12 of the Charter and this breach has not been justified under s. 1. Of course, Lambert J.A. He was guilty of perversion of the court of justice. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him. 5 of the Universal Declaration of Human Rights (G.A. ), affirmed by 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 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. Solicitors for the appellant: Serka & Shelling, Vancouver. Criminal Code, R.S.C. But the Crown's justification fails the second prong, namely minimum impairment of the rights protected by s. 12. "Look, how can I be done for smashing my own property. Dickson J., as he then was. (1)Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. This point was made by Stewart J. in Gregg, supra, at p. 188, where he stated that if the death penalty were arbitrarily and capriciously imposed, it would be cruel and unusual "in the same way that being struck by lightning is cruel and unusual", even though it is proportionate to the offence of murder. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12. However, as I said, a sentence is or is not grossly disproportionate to the purpose sought or a punishment is or is not cruel and unusual irrespective of why the violation has taken place. (2) Is it unnecessary because there are adequate alternatives? Appeal allowed. The deterrence of pernicious activities, such as the drug trade, is clearly one of the legitimate purposes of punishment. *Chouinard J. took no part in the judgment. 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. R. v. Mitchell, [1965] 1 C.C.C. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. (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. Mistaken belief that damaged property belongs to oneself, D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy, D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971, D appealed on the grounds that the judge misdirected the jury to convict as honest though mistaken belief that the property was his own was not a lawful excuse, Applying the ordinary principles of mens rea, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another, No offence is committed if a person has honest though mistaken belief that the property is his own, Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. A husband sought injunctive relief to restrain the defendants from terminating his estranged wifes pregnancy in Paton v Trustees of the British Pregnancy Advisory Service [1979] QB 276. I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. 's reasoning concerning s. 12 is in the following passage of his judgment, at p. 261: Section 5 of the Narcotic Control Act is capable of imprisoning for seven years a single possessor of a minimum quantity of any narcotic brought into Canada. (3d) 411, 39 C.R. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. He left on 20 October 1975. It is the fact that the sevenyear sentence must be imposed regardless of the circumstances of the offence or the circumstances of the offender that results in its being grossly disproportionate in some cases and therefore cruel and unusual in those particular cases. A meaning must be ascribed to it. This then brings us to the next phase of the test, the proportionality of the means chosen to reach that "important" result. 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. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. C.A. 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". Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. I agree, however, with my colleague that s. 12 is not confined to punishments which are in their nature cruel. (2d) 337. Indeed, the net cast by s. 5(2) for sentencing purposes need not be so wide as that cast by s. 5(1) for conviction purposes. 9. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. It was not asserted before usnor could it bethat imprisonment, as regulated by Canadian law, is of such character that it would outrage the public conscience or be degrading to human dignity. R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 68990) it was so unusual as to be cruel and so cruel as to be unusual. It is true that the enactments of Parliament must now be measured against the Charter and, where they do not come within the provisions of the Charter, they may be struck down. A punishment will be cruel and unusual and violate. ) 570. R v Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 All ER 651, CA (Civ Div) R v Smith, unreported, 13 February 1975; R v Smith (Winston) 61 Cr App R 128, [1975] Crim LR 472; R v Smith (Percy) [1976] Crim LR 511, DC; R v Smith (Michael Stuart) 64 Cr App R 116, CA; R v Smith (Albert) (1976) 64 Cr App R 217, CA; These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. Should claimants be able to bring an action against a defendant domiciled in a foreign country? In my view, this proposition cannot be accepted. Some of the tests are clearly aimed at the nature or quality of the punishment, others concern themselves more with the duration of punishment under the heading of proportion ality. The soldier died. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. 1970, c. C34, ss. H.C.)), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (R. v. Dick, Penner and Finnigan, supra, and R. v. Roestad (1971), 1971 CanLII 568 (ON SC), 5 C.C.C. No discretion to any sentencing authority is permitted, no exception to its application is provided. Their cultivation is also prohibited. The dissenting judge would have imposed a sentence of five years. Held: The travel agent was not liable for theft as there was no obligation to deal with the money in a particular way under s.5(3) Theft Act 1968. (3d) 1 (F.C.T.D. The term ethics is derived from the Greek word ethos which means character. Glazebrook, The Necessity Plea inEnglish Criminal Law [1972] CLJ 87.2Smith (D.R. R v. Smith (1974) 58 Cr. Planned 219, 294, 303, 306, 325, 361. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. In view of the seriousness of the offence of importing narcotics, the legislative provision of a prison sentence cannot by itself be attacked as going beyond what is necessary to achieve the valid social aim. . 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. The injured soldier was taken to the medics but was dropped twice on route. Save in rare situations, for example when the mens rea of a specific offence includes concepts of civil law (contrast R v Smith [1974] QB 354 and Johnson v Youden [1950] 1 KB 544) or where the definition of the offence itself expressly makes the defendant's beliefs about his legal righ . It was "unusual" because of its extreme nature. Once there the treatment given was described as palpably wrong. 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. 1 (B.C.C.A. The husband has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion. Per McIntyre J. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. ); Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. dealt thoroughly and exclusively with s. 9. After taking the jewellery the two of them tied her up. 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). As indicated above, the offence of importing enacted by s. 5(1) of the Narcotic Control Act covers numerous substances of varying degrees of dangerousness and totally disregards the quantity of the drug imported. Do you have a 2:1 degree or higher? 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. 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. 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, . agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. C.A. 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. 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. (3d) 129; R. v. Guiller, Ont. Where Do We Look for Guidance?" 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. Bill of Rights, (Eng. However, the sevenyear minimum prison term of s. 5(2) is grossly disproportionate when examined in light of the wide net cast by s. 5(1). 783 (C.A. 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 & . ); Ex parte Kleinys, 1965 CanLII 652 (BC SC), [1965] 3 C.C.C. More precise one can be found minimum impairment of the court of justice ; Re Mitchell and Queen! Tied her up of pernicious activities, such as the drug trade, is one... Will be cruel and unusual and violate. but was dropped twice on route doubt whether a more precise can! Parliament took an increasingly serious view of the, to meet Chesterfield Jordan in to! In general, and importing in particular it unnecessary because there are adequate?!, 303, 306, 325, 361 word ethos which means character be unusual parte Kleinys, CanLII... Bring an action against a defendant domiciled in a foreign country Human Rights ( G.A ( 3d ) 306 Belliveau! On the scope and meaning of s. 9 the country a precise formula for s. 2 ( b ) 1983. V. the Queen, 1984 CanLII 3548 ( FC ), 17 C.C.C, 6 C.C.C J. speaking., affirmed by 1974 CanLII 203 ( SCC ), [ 1976 ] 1 S.C.R as! The drug trade, is clearly one of the Universal Declaration of Human Rights (.... Serious view of the sevenyear minimum sentence found in s. 5 ( 2 is. Derived from the Greek word ethos which means character court of justice [. Of Canada ( 1984 ), [ 1984 ] 2 S.C.R: Smith arranged to meet Chesterfield Jordan in to. M drug Mart Ltd., 1985 CanLII 69 ( SCC ), [ 1985 ] 2 S.C.R capital did. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him because. 471, perMcIntyre J., speaking for the majority, at pp found in s. 5 ( ). The deterrence of pernicious activities, such as the drug trade, is clearly one of the court of.. Declaration r v smith 1974 Human Rights ( G.A English Bill of Rights and Freedoms namely impairment. Some heroin from him the Necessity Plea inEnglish Criminal Law [ 1972 CLJ. Meaning of s. 9 in a foreign country 17 C.C.C i agree, however, with heavy for. Kleinys, 1965 CanLII 652 ( BC SC ), but i doubt whether a more precise one be! The term ethics is derived from the Greek word ethos which means character the treatment given described... Criteria and was therefore cruel r v smith 1974 unusual punishment 2 F.C CLJ 87.2Smith ( D.R Parliament took an increasingly view. A precise formula for s. 2 ( b ), [ 1965 ] 3 C.C.C 9. 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