r v smith 1974

Once Jordan was on the ground all three kicked him and demanded the heroin. 7 and 9. It only applied to males, since homosexual acts between women were not criminal anyway. R v Smith, Plummer and Haines [2011] EWCA Crim 66, [2011] Crim LR 719. 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. (3d) 241; Ex parte Matticks (1973), 1973 CanLII 1572 (SCC), 15 C.C.C. The section, too, cannot be salvaged under s. 1 of the Charter. [para. 's statement of the test for cruel and unusual punishment under s. 12 of the Charter, including his approach to the application of disproportionality and arbitrariness. ), expressed the following view, at pp. 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. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. These examples demonstrate that the courts have been reluctant to recognise any paternal right to be involved in the pregnancy termination decision making process. The minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act fails the proportionality test and therefore prima facie infringes the guarantees established by s. 12 of the Charter. (3d) 233; R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. concluded that capital punishment did not come within these criteria and was therefore cruel and unusual punishment. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the Motor Vehicle Act, R.S.B.C. R v. Smith (1974) 58 Cr. 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? The inclusion of the word "treatment" in the Charter has advanced this broadening process for the nature and quality of treatment or conditions under which a sentence is served are now subject to the proscription. Canada. The appellants did not advance their submissions as being necessarily cumulative, but I take from their contentions that if severity and excessiveness (as they conceived them) were established, that should be enough to sustain their attack on the death penalty in the present case. In this judgment, Heald J., of the Trial Division of the Federal Court, declared that the prison conditions to which certain prisoners were subjected in the solitary confinement unit of the British Columbia Penitentiary amounted to cruel and unusual treatment or punishment. (3d) 411). R v Smith R v Smith [1974] QB 354 Court of Appeal The appellant was a tenant in a ground floor flat. Having written these reasons some time ago, I have not referred to recent decisions of the courts or recent publications. 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. Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. Having made this determination, he then held a presentence hearing and imposed a sentence of eight years in the penitentiary. . (2d) 438 (T.D. In my view, in its modern application the meaning of "cruel and unusual treatment or punishment" must be drawn "from the evolving standards of decency that mark the progress of a maturing society", Trop v. Dulles, 356 U.S. 86 (1958), at p. 101. 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 court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not. In addition to the protection afforded by s. 12, our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7). 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. 1. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative. 161, at p. 170). (3d) 336 (Ont. A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual. 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. 2200 A (XXI), 21 U.N. GAOR, Supp. R. v. Reynolds, 44 C.C.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. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". This was not accepted by the trial judge and Smith appealed the decision. 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 & . (3d) 305, dismissing an appeal from sentence imposed by Wetmore Co. Ct. J. and overturning his ruling finding s. 5(2) of the Narcotic Control Act to be a contravention of s. 12 of the Canadian Charter of Rights and Freedoms, and hence of no force or effect. The, In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. (3d) 306; R. v. Tobac (1985), 1985 CanLII 180 (NWT CA), 20 C.C.C. 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. He pleaded guilty in the County Court of Vancouver, B.C., to importing a narcotic contrary to s. 5(1) of the Narcotic Control Act and was sentenced to eight years in the penitentiary. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Criminal Law. The protection offered by s. 12 of the Charter 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. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. Res. Criminal Code, R.S.C. The offence for which he was indicted is in these terms: Section 1(1) of the Criminal Damage Act 1971. He was convicted of importing drugs under the Narcotics Control Act and sentenced to eight years. Februar 1975 C.A. 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. Nonetheless, in view of the fact that the prohibition in s. 10 of the English Bill of Rights, repeated in the Eighth Amendment to the American Constitution a century later, has now been restated in the Canadian Charter of Rights and Freedoms, it must not be considered obsolete. Advanced A.I. 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. I therefore find arbitrariness a minimal factor in the determination of whether a punishment or treatment is cruel and unusual. The Commission recommended the abolition of mandatory minimum penalties for all offences except murder and high treason because it was of the view that (p. 188): existing mandatory minimum penalties, with the exception of those prescribed for murder and high treason, serve no purpose that can compensate for the disadvantages resulting from their continued existence. American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada. We in Canada also have other sections in the Charter to protect the equality of all in face of the law, amongst others, s. 15(1). 5, 9, as am. ), refd to. Appellant would not be able to show that the minimum punishment in s. 5(2) of the. If section 12 were to be construed to permit a trial judge to ameliorate a sentence mandated by Parliament simply because he considered it to be too severe, then the whole parliamentary role with regard to punishment for criminal conduct would become subject to discretionary judicial review. The final principle proposed, at p. 279: is that severe punishment must not be excessive. 161. You can search by the SCC 5-digit case number, by name or word in the style of cause, or by file number from the appeal court. 2011 ] Crim LR 719 in that case, it was decided that the minimum punishment s.. Be involved in the negative however subsequently withdrew the injunction: see Kelly v Kelly [ 1997 SLT! 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