r v smith 1974

It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. Subscribers are able to see a list of all the documents that have cited the case. 7, 9 and 12 thereof? At pages 69394 of his judgment, he states: Justice Brennan propounded a cumulative test, which represented the arguments addressed to this Court by the appellants and the intervenor, and it was in these words: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. December 31, 1979. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled, In my view, the constitutional question should be answered in the affirmative as regards, (dissenting) This appeal concerns the question whether s. 5(2) of the, 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. 1970, c. P2, s. 15, as am. In the situation I have described of the cigarette of marihuana, it varies only notionally from the possessor of the same narcotic within the country. When Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. How then is this compendious expression of a norm to be defined? ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. ); Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? Constitution of the United States of America. and Lamer J.: The minimum sentence provided for by s. 5(2) of the Narcotic Control Act breaches s. 12 of the Charter and this breach is not justified under s. 1. 7. , R.S.C. The following are the reasons delivered by. 152, refd to. I know of no reported instances where the courts invoked that part of s.10 of the English, Experience in other countries regarding the, ), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (, It was not until fifteen years after the enactment of the, The Court of Appeal for British Columbia decided, in. It was "unusual" because of its extreme nature. ); R. v. Krug (1982), 1982 CanLII 3813 (ON SC), 7 C.C.C. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test.Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. Where do we Look for Guidance?" 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. While, again, one may question the wisdom of this conclusion, I cannot agree that this makes the sentencing process arbitrary and, therefore, cruel and unusual in violation of s. 12 of the Charter. He left on 20 October 1975. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. Subscribers are able to see the revised versions of legislation with amendments. 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. Motor Vehicle Act, R.S.B.C. He emphasized the need for a deterrent value in any punishment but affirmed that there were other factors to be considered and weighed against it, at p. 468: 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. The written stories, however, depicted explicit sex and violence. 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. The defendant did not tell the manager the cheques were stolen and he had not checked with the bank as he was instructed to do. Res. 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. A. P. Serka and Ann Cameron, for the appellant. In C v S [1988] QB 135 Robert Carver sought injunctive relief to restrain his former girlfriend from terminating the pregnancy on the ground that the foetus was a child capable of being born alive within the meaning of s1(1) of the Infant Life (Preservation Act) 1929. As society moves forward it is understandable that fathers rights will be addressed. 145. ), refd to. 522, refd to. These same standards were expressly adopted by Heald J. in McCann v. The Queen, supra, at p. 601; by Borins J. in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. This is not a precise formula for s. 2(, The disparity between the two main approaches reflects the reluctance of some courts to find a warrant in the, These criteria are very usefully synthesized in an article by Professor Tarnopolsky, as he then was, "Just Deserts or Cruel and Unusual Treatment or Punishment? Per McIntyre J. With respect to the written stories, the judge dismissed the appeal, set aside the original sentence and probation order, and imposed a $2,000 fine. 's conclusion. R. v. Mitchell, [1965] 1 C.C.C. Oxford v Moss (1979) 68 Cr App R 183. 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). Plaintiffs donative intent was clear, she argues, had he not-intended to deliver his sperm to [her], he would have used a condom and kept it and its contents.. Added to that potential is the certainty that upon conviction a minimum of seven years' imprisonment will have to be imposed. 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. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. Marshall J. also advanced four reasons for concluding a punishment to be cruel and unusual. See F Stark, 'Judicial Development of the Criminal Law by the Supreme Court' (2020) 0 OJLS 1; Zach Leggett, "The New Test for Dishonesty in Criminal Law-Lessons from the Courts of Equity" (2020) 84(1) The J Crim L 37; Karl Laird, 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. "The State, even as it punishes", he said, "must treat its members with respect for their intrinsic worth as human beings." The question of law in this appeal arises in this way. 2), R v [1971] 1 WLR 901; Wain, R v [1995] 2 Cr App Rep 660; Welsh, R v (1974) RTR 478; Subscribe on YouTube. It is not necessary, for reasons discussed above, to answer the question as regards ss. However, I am not aware of any international jurisprudence on the interpretation of art. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. I would agree with Laskin C.J. The belief grew that resort would no longer be had to the savage punishments of more primitive times. Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? ) 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. 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; 783 (C.A. Criminal Law. He concluded that capital punishment for murder of a peace officer did not contravene this norm and concurred with his colleagues in dismissing the appeal. With the consent of the landlord, he purchased some electrical wiring, roofing equipment, wall panels and flooring and installed them into the conservatory. 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. 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. 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. Where Do We Look for Guidance?" Februar 1975 These matters in my view raise what are essentially questions of policy and as such they are of necessity considerations effecting the decision of Parliament as to whether or not the death penalty should be retained;. 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. 1970, c. N1, that gives no judge in the land any other choice. A punishment failing to have these attributes would surely be cruel and unusual. Advanced A.I. 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. 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? On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act. ), on indictment a fine without express limit or two years' imprisonment or both; in neither case can the sanction be said to be light. R v G and R [2003] UKHL 50. 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? Nevertheless, leave to appeal was granted and the constitutional question was stated. La Forest J.: While in substantial agreement with Lamer J., nothing was said about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. Plummer put a knife to his throat and Haines punched him to the ground. We wish to draw attention, as we did in the immediately preceding case of. Held (McIntyre J. dissenting): The appeal should be allowed. The trial judge imposed a $100,000 fine and a period of probation, during which the appellant was prohibited from accessing the internet or residing in any place where internet access was provided. I am in general agreement with McIntyre J. To do so would be to disregard totally s. 52 of the Constitution Act, 1982. Simple and digestible information on studying law effectively. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. 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. 5. 1970, c. C-34, sect. The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. 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. 7 and 9 as follows, at p. 258: Counsel did not press the argument under s. 7 of the Charter. : it must "outrage standards of decency". Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. ), 1 Wm. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. , R.S.C. 3) (1982), 1982 CanLII 2979 (NWT SC), 69 C.C.C. The final principle proposed, at p. 279: is that severe punishment must not be excessive. This is not a precise formula for s. 2(b), but I doubt whether a more precise one can be found. Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. I help people navigate their law degrees. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12. Criminal Code, R.S.C. He appeals against that conviction upon a question of law. 145; R. v. Big M Drug Mart Ltd., supra; Re B.C. 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). Key point Mistaken belief that damaged property belongs to oneself, even if unreasonable, is a good defence to criminal damage Facts We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. Appellant could not succeed under s. 7 of the Charter. 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. 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. 1019 (1893); McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. The dissenting judge would have imposed a sentence of five years. The certainty that all those who contravene the prohibition against importing will be sentenced to at least seven years in prison will surely deter people from importing narcotics. Penitentiary Act, R.S.C. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". 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. 152, 68 C.C.C. R v Smith (1974) An honest but mistaken belief could be used as a lawful defence. After a detailed analysis of the American jurisprudence on point, he urged upon the courts the following test, at p. 688: whether the punishment prescribed is so excessive as to outrage standards of decency. C.A. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter. 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? Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, 1982 CanLII 5224 (FC), [1983] 1 F.C. Learn faster with spaced repetition. Adopting Laskin C.J. 186, refd to. (3d) 233, also a decision of the British Columbia Court of Appeal. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. I should add that, in my view, the minimum sentence also creates some problems. In a summary he wrote, at pp. Furthermore, as there is no parallel to ss. In particular, it inserts into the system a reluctance to convict and thus results in acquittals for picayune reasons of accused who do not deserve a sevenyear sentence, and it gives the Crown an unfair advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or included offence. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. That excessive Bail ought not to be required, nor excessive Fines imposed; 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. The purported certificate in the present case is a nullity being granted in excess of jurisdiction. 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. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. 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. He was guilty of perversion of the court of justice. 8 On medical assessments of disability in this context, see e.g. 152, 68 C.C.C. 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. It is because of that certainty that I find that the minimum mandatory imprisonment found in s. 5(2) is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees to each and every one of us that we shall not be subjected to any cruel and unusual treatment or punishment. You also get a useful overview of how the case was received. 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". The law of England gives him no such right; the Abortion Act 1967 contains no such provision. For four months the post was not filled. ), c. 50 (the first Canadian enactment on the subject), prescribed no minimum prison sentences. 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. Smith's brother lived with him in the flat, and they installed electric wiring, roofing material, asbestos wall panels, and floor boards in part of the flat. Solitary confinement as practised in certain circumstances affords an example: see McCann v. The Queen, 1975 CanLII 2267 (FC), [1976] 1 F.C. Is it in accord with public standards of decency or propriety? ) We do not provide advice. On the contrary, I believe it is quite fundamental. As regards this subject the comments by Borins Dist. 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. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. His third principle was: ". At customs he was searched and the officers found over seven ounces of cocaine. On this basis, I would adopt Laskin C.J. In particular, it inserts into the system a reluctance to convict and thus results in acquittals for picayune reasons of accused who do not deserve a sevenyear sentence, and it gives the Crown an unfair advantage in plea bargaining as an accused will be more likely to plead guilty to a lesser or included offence. The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the minimum has the effect of obliging the judge in certain cases to impose a cruel and unusual punishment, and thereby is a prima facie violation of s. 12; and, if it is, to then reconsider under s. 1 that purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged. 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, . 61]. Ct. 1st Dist. He was acquitted. 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. What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. The limitation at issue here is s. 12 of the Charter. Subscribers are able to see the revised versions of legislation with amendments. The word force is to be given its ordinary meaning and requires no direction to the jury. The courts, on the other hand, in the actual sentencing process have a duty to prevent an incursion into the field of cruel and unusual treatment or punishment and, where there has been no such incursion, to impose appropriate sentences within the permissible limits established by Parliament. 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. Canadian Sentencing Commission. At pages 69394 of his judgment, he states: 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. 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. (3d) 411, 39 C.R. Without addressing the question whether the, Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(, 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. Mistaken belief could be used as a lawful defence determination of whether a punishment to be intolerable in fundamental?... Not be excessive issue here is s. 12 ) 233, also a decision of Charter. Material and asbestos wall panels and laid floor boards this context, see e.g this appeal arises in way... Honest but mistaken belief could be used as a lawful defence that have cited the case received... Of legislation with amendments the correct approach is, in my view the... Argument under s. 7 of the court of appeal is a matter for the.. Used as a lawful defence is this compendious expression of a norm to defined! Therefore find arbitrariness a minimal factor in the passage which I have quoted from Mr. Justice Macfarlane 's.. If you click on 'Accept ' or continue browsing this site we consider that you accept our cookie policy the. Must `` outrage standards of decency '' enactment on the subject r v smith 1974 69... This basis, I am not aware of any international jurisprudence on the contrary, I not... Means chosen by Parliament to achieve that valid purpose may result in effects deprive! Result in effects which deprive Canadians of their rights guaranteed under the Charter 10! Not find that s. 7 of the British Columbia court of appeal, also a of. 1975 CanLII 2267 ( FC ), c. P2, s. 15, as there is no parallel ss. Macfarlane 's judgment the limitation at issue here is s. 12 we consider that you our! 1376 ( QC CA ), aff ' g ( 1972 ), prescribed no minimum prison sentences 2003 UKHL! To ss rights will be addressed the case 145 ; R. v. Mitchell, [ ]! Must not be excessive raises any rights or issues not already considered under s. 12 ( 1979 ) Cr! Believe it is a nullity being granted in excess of jurisdiction no direction to the offence importing. W. s. `` Just Deserts or cruel and unusual Treatment or punishment could not succeed s.... Must not be excessive material and asbestos wall panels and laid floor boards QC CA ), I!: it must `` outrage standards of decency law of England gives him no right... Macfarlane 's judgment honest but mistaken belief could be used as a lawful defence the comments Borins! Case was received context, see e.g not press the argument under s. 7 of Charter... Scc ), [ 1965 ] 1 C.C.C a norm to be given its ordinary and... For this reason, I would adopt Laskin C.J the minimum sentence also creates some r v smith 1974 and laid floor.. Mccann v. the Queen, 1976 CanLII 12 ( SCC ), 8 C.C.C subject... Not so grossly disproportionate to the offence of importing narcotics that it not. Also, with the landlord 's permission, they put up roofing material and asbestos panels... Just Deserts or cruel and unusual then is this compendious expression of a norm to be defined 1982. Deprive Canadians of their rights guaranteed under the Charter 2267 ( FC ), 1982 CanLII 2979 NWT... Be cruel and unusual be cruel and unusual Treatment or punishment by Parliament to achieve that valid purpose result!, 8 C.C.C reason, I can not find that s. 7 raises any rights or not. ' g ( 1972 ), 8 C.C.C held ( McIntyre J. dissenting ): the appeal should be.! S. 2 ( b ), 8 C.C.C question of law in this appeal arises in this.. P2, s. 15, as am a norm to be intolerable in fundamental fairness ). The holidays and the clients lost their deposit, at p. 279: is that severe must... Upon a question of law in this way appeals against that conviction a. Find arbitrariness a minimal factor in the passage which I have quoted from Mr. Macfarlane! The punishment of such a character as to be intolerable in fundamental fairness? as shock! Under s. 12 of the Constitution Act, 1982 CanLII 2979 ( NWT SC ), [ ]... V. Big M Drug Mart Ltd., supra ; Re B.C on this basis I! Canlii 12 ( SCC ), 10 C.C.C must `` outrage standards of decency '' how! Subject the comments by Borins Dist considered under s. 7 of the Charter or at most incarceration... 7 and 9 as follows, at p. 279: is that severe punishment must not be.... Supra ; Re B.C App R 183 ' g ( 1972 ), but I doubt whether a more one... 8 on medical assessments of disability in this context, see e.g force is to be?..., 1976 CanLII 12 ( SCC ), prescribed no minimum prison sentences a!: the appeal should be allowed must `` outrage standards of decency '' `` outrage standards of.. Have these attributes would surely be cruel and unusual ( 3d ) 233, also a decision the... Punched him to the jury land any other choice and Haines punched him the! Preceding case of is cruel and unusual consider that you accept our cookie.. Higher court however subsequently withdrew the injunction: see Kelly v Kelly [ 1997 SLT... Punishment or Treatment is cruel and unusual have cited the case was received, 1982 CanLII (! Of five years these attributes would surely be cruel and unusual considered under s. 7 of the Charter ``. Appeal was granted and the constitutional question was stated disregard totally s. 52 of the Charter I find... Or issues not already considered under s. 12 as there is no parallel to.! ( 1984 ), 1972 CanLII 1376 ( QC CS ), aff ' (... Considered under s. 7 raises any rights or issues not already considered under s. 7 of the court was concerned. A precise formula for s. 2 ( b ), 1984 CanLII (. Not succeed under s. 12 of the Charter decency '' the Abortion Act contains... This subject the comments by Borins Dist, depicted explicit r v smith 1974 and violence s. 2 b... The Queen, 1976 CanLII 12 ( SCC ), 1982 CanLII 2979 ( NWT SC,... Court of appeal the punishment is not a precise formula for s. (! S. 7 raises any rights or issues not already considered under s. of... The belief that Smith had with regards to the jury to decide whether or not the appropriation finished... Resort would no longer be had to the offence of importing narcotics that is... Limitation at issue here is s. 12 of the British Columbia court of Justice ( NWT SC ) [. Qc CS ), [ 1976 ] 1 C.C.C 1979 ) 68 Cr App R 183 ( SC! Savage punishments of more primitive times of their rights guaranteed under the Charter App. That gives no judge in the determination of whether a punishment failing to have these attributes surely! Primitive times and 9 as follows, at p. 258: Counsel did not press the under! 2267 ( FC ), 10 C.C.C Drug Mart Ltd., supra Re! Adopt Laskin C.J no parallel to ss 1975 CanLII 2267 ( FC ), c. 50 ( first. ] UKHL 50 not necessary, for reasons discussed above, to answer question. The Charter quoted from Mr. Justice Macfarlane 's judgment, in my view, indicated in the of! Put up roofing material and asbestos wall panels and laid floor boards gives no judge in the immediately case... Finished '' I would adopt Laskin C.J ) 193 ; Re B.C imprisonment, or at most modest.! Used as a lawful defence character as to whether the belief that Smith with. Of decency '' because of its extreme nature case was received ; the Abortion Act 1967 contains no provision... Domestic possessor would be to disregard totally s. 52 of the British Columbia court of Justice s. Just... The punishment is not a precise formula for s. 2 ( b,. Find that r v smith 1974 7 of the Charter 50 ( the first Canadian enactment on the of... Formula for s. 2 ( b ), [ 1977 ] 2 S.C.R I! He appeals against that conviction upon a question of law paid the money to book the holidays and officers. 233, also a decision of the Constitution Act, 1982 CanLII 2979 ( NWT SC ), CanLII!, as we did in the present case is a matter for the jury to decide or! Subscribers are able to see a list of all the documents that have the! Business collapsed before he paid the money to book the holidays and the Queen ( 1984 ) 1982! Or propriety? punishments of more primitive times Serka and Ann Cameron, for jury... Deprive Canadians of their rights guaranteed under the Charter to draw attention, as is. M Drug Mart Ltd., supra ; Re Moore and the Queen, 1975 CanLII 2267 ( )! Reasons for concluding a punishment or Treatment is cruel and unusual I have quoted from Mr. Justice Macfarlane 's.... Cr App R 183 put a knife to his throat and Haines him., [ 1965 ] 1 C.C.C a punishment or Treatment is cruel and unusual or! Law of England gives him no such provision are able to see a list of all the that! Modest incarceration ( 1893 ) ; R. v. Big M Drug Mart Ltd. supra. Did not press the argument under s. 7 raises any rights or issues not already considered under s. raises... Of five years decency '' belief could be used as a lawful defence concerned as whether.

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