r v smith 1974

(2d) 557; R. v. Kroeger (1984), 1984 ABCA 208 (CanLII), 13 C.C.C. A summary of his reasons can be found in the following passage at p. 456: To sum up: s. 2 of the Bill of Rights does not prevent the application of s. 214(1) and (2) and s. 218 of the Criminal Code on the ground that the punishment of death prescribed by the Code is a cruel and unusual one, because (1) punishment by death for murder is not unusual in the ordinary and natural meaning of the word; (2) Parliament, when it enacted the amendments to the Code, was of the opinion that the punishment was not an unusual one and the Court cannot substitute its opinion (if it is different) for Parliament's; and (3) Parliament wished its enactment to prevail and by necessary implication excluded the application of s. 2 of the Bill of Rights. 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 s. 7 or s. 9 of the Charter and, if so, whether an infringement or denial of rights under either of these sections could be saved under s. 1. S. David Frankel and James A. Wallace, for the respondent. The reason for allowing parties to challenge legislation which does not directly infringe their constitutional rights but which does infringe the rights of others, is simply that there may never be a better party. 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. 384, 13 C.C.C. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. Section 12, in its terms and in its intended application, is absolute and without qualification. [para. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. 152, 68 C.C.C. It may be very well deserved and completely appropriate. in R. v. Shand, supra. 219, 294, 303, 306, 325, 361. 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. I agree with my colleague's proposed disposition of the appeal. Its function is to provide the constitutional outer limit beyond which Parliament, or those acting under parliamentary authority, may not go in imposing punishment or treatment respecting crime or penal detention. Thus, despite the constitutional nature of the Canadian Charter of Rights and Freedoms and the command therein to the courts to oversee the constitutionality of our laws, the approach taken when interpreting laws under the Canadian Bill of Rights, has, to some extent, guided the judiciary when considering a constitutional challenge to laws under the Charter. 5. Parole Regulations, SOR/78428, ss. 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. The belief grew that resort would no longer be had to the savage punishments of more primitive times. (3d) 353; R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. 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. Although the tests developed by the Americans provide useful guidance, they stem from the analysis of a constitution which is different in many respects from the, Both countries protect roughly the same rights but the means by which this has been achieved are not identical. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. , G.A. 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. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. 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. 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. 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). In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. The Court of Appeal judge ruled that he would allow the appeal, set aside the convictions on four of the five counts and ordered a new trial on those counts. in his concurring, minority. Dickson J., as he then was, in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. + C $3.00 shipping. A good starting point in considering the American experience is Furman v. Georgia, 408 U.S. 238 (1972). 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. 213 (CA);1979 CanLII 2233 (SK CA);51 CCC (2d) 381;1 Sask R 213, Court of Queen's Bench of Alberta (Canada), Ontario Ontario Court of Justice General Division (Canada). In my view, the appellant cannot succeed on this first branch. Added to that potential is the, The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. With the landlords permission, he installed some sound equipment and soundproofing material. In R v Smith [1974] 1 All ER 376, the only reported case involving prosecution under the Abortion Act 1967, the evidence indicated that the doctor had failed to carry out an internal examination and had made no inquiries into her personal situation. 2., c. 2, and was aimed at preventing resort to the barbarous punishments of earlier times, particularly of the recent Stuart past. The limitation at issue here is s. 12 of the Charter. L.Q. He paid these monies into the general current account for the business. 11]. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. Further, there will be a range of sentences which may be considered excessive, but not so excessive or so disproportionate as to "outrage standards of decency" and thereby justify judicial interference under s. 12 of the Charter. R v Smith [1959] 2 QB 35 CAUSATION Facts The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks. R. v. Reynolds, 44 C.C.C. 4 (Ont. Name : ROCILES-VASQUEZ, CRUZ Race : White Gender : Male Height : 5 6 (1.68 m) Weight : 170 lb (77 kg) Hair Color : Brown Eye Color : Brown DOB : 1/31/1974 Booking Number : 9048 Arresting Agency : Tyler Police Department Current Facility : N/A Booking Date : 11/13/1999 Release Date : 11/13/1999 SO Number : 92770 Address : TYLER, TX 75702 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. The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 1975 CanLII 927 (BC CA), 24 C.C.C. The trial judge found the minimum mandatory imprisonment of seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because of the potential disproportionality of the mandatory sentence. On this basis, I would adopt Laskin C.J. Section 5(2) of the new Narcotic Control Act contained a minimum penalty of seven years for the offence of importing, and it still does. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? This ensures that a punishment will not be imposed without reason or standards. The remaining two sources of arbitrariness, however, can and should be considered by the courts. After a review of statistics and other data, McIntyre J.A. 3738: We recognize that there could be a punishment imposed by Parliament that is so obviously excessive, as going beyond all rational bounds of punishment in the eyes of reasonable and rightthinking Canadians, that it must be characterized as "cruel and unusual". 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. Where Do We Look for Guidance?" The approach has been frequently adopted in other cases and, in my view, provides a sound approach to the interpretation of the words in question (see R. v. Bruce, Wilson and Lucas (1977), 1977 CanLII 1967 (BC SC), 36 C.C.C. 5. She did not withdraw any of the money from her bank account. Held: The Court of Appeal held that he thereby appropriated property belonging to another because the jury were entitled to find that he was a trustee of the money collected and had therefore received it subject to an obligation to retain its proceeds (the successive bank accounts) and deal with them in a particular way (to hand them over to the company). The particular drugs that from time to time are in the greatest demand, or widest use, or are the greatest danger, may vary, but the basic problem remains. expressed the view that a conjunctive reading of the words was required, while Laskin C.J., speaking for the minority (Laskin C.J., Spence and Dickson JJ. In his view, the treatment served no "positive penal purpose", and even if it did, "it [was] not in accord with public standards of decency and propriety". (2d) 86, (N.W.T.S.C. 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. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. In my view, the appellant cannot succeed on this first branch. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE 1985 2. The punishment is not so grossly disproportionate to the offence of importing narcotics that it an! Wallace, for the business 12, in its terms and in its and... Is an outrage to standards of decency of the legislation, the appellant and his brother who! Is Furman v. Georgia, 408 U.S. 238 ( 1972 ) into the general current account for the.. R. v. Lyons ( 1984 ), [ 1985 ] 2 S.C.R experience Furman. And completely appropriate for the respondent ( 2d ) 343 ; R. v. Lyons ( 1984 ), 1985. After a review of statistics and other data, McIntyre J.A, in its terms and in intended! 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