I should add that because of the view taken by the majority in Miller and Cockriell of the status of the Canadian Bill of Rights, they did not find it necessary to consider what standards should be developed in applying the clause prohibiting cruel and unusual punishment. 3d 1164, 2005 (Ill. App. There is a further point which should be made regarding proportionality. 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. (3d) 1 (F.C.T.D. When interviewed by the police, the Appellant said "Look, how can I be done for smashing my own property. 109899 v. : . 486. largely adopted the tests enunciated in the American cases and the earlier Canadian case considered above. While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. The legislative approach is clear and direct. 5. 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. 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. 214(2) [para. ), and the American cases; Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (2nd Cir. Before making any decision, you must read the full case report and take professional advice as appropriate. Stone v Ford (1992) 65 A Crim R 459. 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. Res. That is for Parliament and the Legislatures.The courts are confined to deciding whether the legislation enacted by the parliamentary process is constitutional." 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 R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under s. 12 of the Charter, does not appear to arise on the facts of the case. 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 s. 12 of the Charter to a greater degree than is necessary. Looking for a flexible role? This is understandable as at the time this Court had not yet handed down its decision in Re B.C. After a review of statistics and other data, McIntyre J.A. In my view, the appellant cannot succeed on this first branch. As time passed, the civilizing influence of the late nineteenth and twentieth centuries eliminated, or at least greatly reduced, the danger of such barbarous punishments. 16 Canada, Law Reform Commission of Canada, Evidence 10: The Exclusion of Illegally Obtained Evidence, a Study Paper Prepared by the Law of Evidence Project (Ottawa: Justice Canada, 1975 . Solicitor for the intervener: Attorney General for Ontario, Toronto. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective. (3d) 306 (Ont. How then should the concept of cruel and unusual treatment or punishment be defined? As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. This ensures that a punishment will not be imposed without reason or standards. I see no reason to depart from this overriding consideration in the interpretation of s. 12 of the Charter. The constitutional question before the Court was whether or not s. 5(2) of the Narcotic Control Act was contrary to the Charter, and in particular, to ss. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 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. Theme by SiteOrigin. In my view, this is not a sound approach to the application of s. 12. Where do we Look for Guidance?" Held: The confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. What factors must be considered in deciding whether a given sentence may be categorized as cruel and unusual? Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. 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. Clearly, the minimum penalty for importing, enacted after recommendations to that end, was the result of deliberate legislative policy, with specific evils and specific remedies in mind. It must be remembered that s. 12 voices an absolute prohibition. With respect to the first, I agree with Lambert J. in the Court of Appeal that this is not a matter which can properly be considered by the courts. (3d) 49; Trop v. Dulles, 356 U.S. 86 (1958); R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. Sentences far in excess of seven years are imposed daily in our courts for a variety of offences under the Criminal Code, R.S.C. 102 (B.C.S.C. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms. One new video every week (I accept requests and reply to everything!). L.R. 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. One must also measure the effect of the sentence actually imposed. First, the measures adopted must be carefully designed to achieve the objective in question. The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. 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". 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. 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.. 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. He appeals against that conviction upon a question of law. R. v. Smith. (2d) 343; R. v. Natrall (1972), 1972 CanLII 1017 (BC CA), 32 D.L.R. 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. 680. One went upstairs and took some jewellery from her bedroom. Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the Narcotic Control Act was prima facie inconsistent with the rights guaranteed by that section. It is this aspect of certainty that makes the section itself a prima facie violation of s. 12, and the minimum must, subject to s. 1, be declared of no force or effect. a severe punishment must not be unacceptable to contemporary society" (p. 277). It may well be excessive, but more than excess is required to meet the test of Laskin C.J. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. (3d) 193; Re Moore and The Queen (1984), 1984 CanLII 2132 (ON SC), 10 C.C.C. Murder - First degree murder, meaning of "planned and deliberate" - Criminal Code, s. 214(2) - The Saskatchewan Court of Appeal referred to several meanings of the words "planned and deliberate" - See paragraphs 23 to 27. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender. 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. One might question the wisdom or desirability of this legislative decision but, in my view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity. The first minimum sentence of imprisonment had been enacted in 1922 (c. 36, s. 2(2)); it was six months. The term ethics is derived from the Greek word ethos which means character. Prov. Such a result reduces the significance of the absolute prohibition in s. 12 of the Charter and does not afford, in my view, an acceptable approach to a constitutional question. In the meantime the Bill of Rights had been enacted. 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