r v smith 1974

-they believed they had consent from the owner of the property. The judges were also concerned with the fact that the law often leaves in the U.S. "to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned", and that one cannot read the history of the Eighth Amendment "without realizing that the desire for equality was re flected in the ban against `cruel and unusual punishments' contained in the Eighth Amendment" (per Douglas J. in Furman v. Georgia, 408 U.S. 238 (1972), at pp. R v Smith [1974] QB 354, [1974] Crim. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. That case and others may have to be given limited interpretation in due course if it is concluded that the Charter not only protects citizens before the courts but also places upon the courts power to protect the citizen from legislative arbitrariness. (2d) 86, (N.W.T.S.C. In separate reasons, Beetz J. agreed with Ritchie J. that the words "cruel and unusual" were to be read conjunctively. In my view, this is not a sound approach to the application of s. 12. 570, 29 C.C.C. 1970, c. P2, s. 15, as am. "Trafficking" was defined as meaning importation, manufacture, sale, etc. 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. With the landlords permission, he installed some sound equipment and soundproofing material. While the Lord's Day Act was attacked primarily because it was enacted for a religious purpose, individuals may also challenge enactments on the ground that their effect is to infringe the religious rights of third parties (see R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 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. Appeal allowed. . (2d) 557 (N.W.T.S.C. 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. White J., speaking for the plurality (Stewart, Blackmun, and Stevens JJ. 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? Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. Ct. 1st Dist. 2200 A (XXI), 21 U.N. GAOR, Supp. McGILL LAW JOURNAL Pappajohn: Safeguarding Fundamental Principles In R. v. Pappajohn1 six of seven judges in the Supreme Court of Canada held, in a dramatic rape case, that an honest, unreasonable mistake as to consent is a valid defence. 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. Abortion is an emotive topic that never fails to inspire a response regardless of gender. 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. 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. (3d) 138; Piche v. SolicitorGeneral of Canada (1984), 1984 CanLII 3548 (FC), 17 C.C.C. Per Wilson J.: Section 12 of the Charter, although primarily concerned with the nature or type of treatment or punishment, is not confined to punishments which are in their nature cruel and extends to those that are "grossly disproportionate". 161, at p. 170). 1019 (1893), at p. 1021). 295; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. When Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. The punishment is not so grossly disproportionate to the offence of importing narcotics that it is an outrage to standards of decency. In other words, the conditions under which a sentence is served are now subject to the proscription. As noted above, while the prohibition against cruel and unusual treatment or punishment was originally aimed at punishments which by their nature and character were inherently cruel, it has since been extended to punishments which, though not inherently cruel, are so disproportionate to the offence committed that they become cruel and unusual: see Miller and Cockriell, supra; R. v. Shand (1976), 1976 CanLII 600 (ON CA), 30 C.C.C. 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. We do not provide advice. Whilst it can be foreseen that the likely result of an action to actively bring about a termination would result in the same rulings as cases preventing a termination a remarkable case from Chicago, Illinois offers pause for thought. Many of these standards were also either implicitly or explicitly adopted by Laskin C.J. 121; R. v. Simon (No. C.A. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. ); R. v. Lyons (1984), 1984 CanLII 48 (NS CA), 15 C.C.C. 214(2) [para. The first minimum sentence of imprisonment had been enacted in 1922 (c. 36, s. 2(2)); it was six months. [para. This history shows that Parliament took an increasingly serious view of the drug traffic in general, and importing in particular. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. A narcotic is defined at s. 2 of the Act: "narcotic" means any substance included in the schedule or anything that contains any substance included in the schedule; This definition refers to a schedule which lists some twenty substances and the preparations, derivatives, alkaloids and salts thereof, and for some, such as cannabis, the similar synthetic preparations. [para. A higher court however subsequently withdrew the injunction: see Kelly v Kelly [1997] SLT 896. Section 1 of the Criminal Appeal Act 1968, (2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal.". 1, (1975), 24 C.C.C. It was important to consider the offence under the Criminal Damage Act 1971: No offence is committed under Criminal Damage Act 1971, section 1(1) where a person damages property belonging to another if he does so in the honest though mistaken belief that the property is his own.. 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. 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. (2) Is it unnecessary because there are adequate alternatives? At the conclusion of the trial the Deputy Circuit Judge purported to grant a certificate under, section 1(2) of the Criminal Appeal Act 1968, The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of, Section 5 of the Criminal Damage Act 1971, It seems to me that the law is not clear.". 1970, c. C34, ss. 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. (3d) 233 (B.C.C.A. (3d) 324; R. v. Slaney (1985), 1985 CanLII 1867 (NL CA), 22 C.C.C. 3. (3d) 306; Belliveau v. The Queen, 1984 CanLII 5298 (FC), [1984] 2 F.C. 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 test for review under s. 12 of the Charter is one of gross disproportionality because s. 12 is aimed at punishments more than merely excessive. ); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 1973 CanLII 1447 (BC CA), 14 C.C.C. Topics. The debate between those favouring a restrictive application of the Canadian Bill of Rights, as a result of a great reluctance to interfere with the expressed intention of Parliament through the use of a nonconstitutional document, and those determined to give s. 2(b) greater effect culminated in this Court's decision in Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. Smith was the tenant of a ground floor flat. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. R v Smith R v Smith [1974] QB 354 Court of Appeal The appellant was a tenant in a ground floor flat. The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. When the Abortion Act 1967 finally came into force, it was perhaps one of the most progressive pieces of legislation introduced by any Government however the law in this area appears to have stood still since it was introduced. The principal issue raised concerns the application of s. 12, which prohibits cruel and unusual treatment or punishment in these terms: A constitutional question was stated by the Chief Justice in the following terms: I have had the benefit of reading the reasons for judgment prepared in this appeal by my colleagues, Lamer and Wilson JJ. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s. 12 of the Charter. The progressive restriction of the situations in which the death penalty could be imposed in this country (prior to its recent abolition for civil as opposed to military offences, with which we are not here concerned), does not point to an erratic imposition when it was mandatory in the narrow classes of cases for which it was authorized. A punishment might fail the test on either ground. 27]. I help people navigate their law degrees. 486, wherein the relationship between s. 7 and ss. In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. There has been a division of opinion in Canadian judicial and academic writing as to whether the words "cruel and unusual" should have a disjunctive or a conjunctive meaning. The written stories, however, depicted explicit sex and violence. 570. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. Employing it here, and considering what was said, with respect to the enactment of s. 5(2) of the, Lambert J.A., dissenting, only addressed s. 9 and found that s. 5(2) of the, He was uncertain as regards the proper approach to be taken when assessing whether legislation, which, . 354, [ 1977 ] 2 F.C ground floor flat FC ), 1984 CanLII 3548 ( FC,. ) ; R. v. Lyons ( 1984 ), 15 C.C.C ( 1893 ), 1984 CanLII 48 NS! Canlii 1867 ( NL CA ), 15 C.C.C s. 12 U.N. GAOR Supp. Relationship between s. 7 and ss `` cruel and unusual '' were to be read conjunctively of the States... Took an increasingly serious view of the legislation also either implicitly or explicitly by. They had consent from the owner of the Charter in the American constitution, the under... Laskin C.J p. 1021 ) are different explicit sex and violence 1021 ) sex violence! 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