It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished". (2d) 556; Re Rojas and The Queen (1978), 1978 CanLII 2309 (ON SC), 40 C.C.C. This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and HALL, JJ.A., of the Saskatchewan Court of Appeal. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. Finally, even though in his opinion it was unnecessary to provide an exhaustive definition of "cruel and unusual" for the purpose of disposing of the appeal, Ritchie J. added the following comments, at pp. Entry into that gray area will not alone justify the application of the absolute constitutional prohibition voiced in s. 12 of the Charter. Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? The jury were entitled to find that force had been used. 5, 9, as am. Regina v. Smith England and Wales High Court of Justice, Queen's Bench Division Q.B. 27th Jun 2019 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. In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. In coming to this conclusion no assumption is made as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multifaceted phenomenon. Report of the Canadian Sentencing Commission. The injured soldier was taken to the medics but was dropped twice on route. All that Parliament has done is to conclude that the gravity of the offence alone warrants a sentence of at least seven years' imprisonment. D believed the fixtures belonged to him. It was not until fifteen years after the enactment of the Canadian Bill of Rights that a more in depth analysis of the protection afforded by s. 2(b) was undertaken. (9) Is it unusually severe and hence degrading to human dignity and worth? 1970, c. C-34 - See paragraphs 23 to 27. Res. 's interpretation of the phrase as a "compendious expression of a norm". Section 12 on its face appears to me to be concerned primarily with the nature or type of a treatment or punishment. Dist. The appellant appealed both his convictions and sentence. John C. Pearson, for the intervener the Attorney General for Ontario. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. Edward Smith, a twenty-seven-year-old man with multiple convictions for drug-related offences, was arriving back in Canada from Bolivia. However, the potential that such a person be charged with importing is there lurking. 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. Dissenting, McIntyre J.A., as he then was, undertook a more detailed analysis of the protection afforded by s. 2(b) of the Canadian Bill of Rights. I help people navigate their law degrees. The importation of narcotics is not a constitutionally protected activity. The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. Held: The convictions were upheld as the appropriation of the jewellery was a continuing act. Advanced A.I. The mandatory 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 necessary. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. Further, after considering the justifications of deterrence and retribution, he concluded at pp. 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. & M. sess. If the impugned law or practice does not prohibit any individual from engaging in a constitutionally protected activity, there is no basis for allowing parties before the court to invoke the rights of hypothetical third parties in support of their challenge. ACCEPT, refd to. 68990) it was so unusual as to be cruel and so cruel as to be unusual. 486. Res. 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. At most, the divergence in penalties is an indication that the greater penalty may be excessive, but it will remain necessary to assess the penalty in accordance with the factors discussed above. 4; Dowhopoluk v. Martin (1971), 1971 CanLII 557 (ON SC), 23 D.L.R. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. 391, refd to. A person convicted of importing a narcotic under s. 5 of the, I turn then to the second test which, of course, overlaps the first in some respects. ", As Lamer J. has indicated at p. 1069 of his judgment, these are the tests which have been generally applied in the cases heard so far under, 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? (2d) 196 (B.C.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. It was "unusual" because of its extreme nature. 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, . 1970, c. N1, that gives no judge in the land any other choice. 1. in Miller and Cockriell, supra, Borins Co. Ct. J. said, at p. 216: Thus, two factors to be taken into consideration in determining whether the mandatory minimum sentence in this case constitutes "cruel and unusual treatment or punishment" are the effect of the severity or excessiveness of the penalty in relation to the "dignity and worth of the human person" and the potential for the absence of "equality before the law" resulting from the exercise of prosecutorial discretion resulting, in turn, in an arbitrary punishment. Ball v McIntyre (1966) 9 FLR 237, 245. Parole Regulations, SOR/78428, ss. R. v. Mitchell, 43 C.R. 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. [para. 1978); and Solem v. Helm, 463 U.S. 277 (1983). ); R. v. Morrison, Ont. ), aff'g (1972), 1972 CanLII 1376 (QC CA), 10 C.C.C. (3d) 233 (B.C.C.A. (2d) 343 (Que. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of coldblooded nonusers), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. His funeral service took place at the Burari Christian cemetery on Thursday afternoon . Facts: The two defendants broke into a woman's home. The extent of the damage was 130. largely adopted the tests enunciated in the American cases and the earlier Canadian case considered above. 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 sevenyear minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender. Res. Some punishments may be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also being cruel and unusual. Held: There was an appropriation even though he acted with the authority of the shop manager. on appeal from the court of appeal for british columbia. She did not withdraw any of the money from her bank account. lawprof.co. 713). 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. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. Accordingly, a punishment which "does not comport with human dignity" would be cruel and unusual (p. 270). This step, however, must not be taken by the courts merely because a court or a judge may disagree with a Parliamentary decision but only where the Charter has been violated. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Current bid: US $1.85 [ 2 bids ] ApproximatelyC $2.52 Enter US $2.10 or more Shipping: US $4.95 (approx C $6.74)Standard Shipping. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. This brings me to the final test for consideration: is the punishment arbitrarily imposed, in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards? Legislation is arbitrary on its face if it imposes punishment for reasons or in accordance with criteria which are not rationally connected with the objects of the legislation. In each view, elements of both cruelty and unusualness are involved in a consideration of the total expression. Importers were mentioned, and a recommendation made for a special offence "with a penalty of the utmost severity for the illicit importation of drugs into Canada". In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. These comments clearly demonstrate that Laskin C.J. . 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