R. v. Smith (Edward Dewey)

R. v. Smith (Edward Dewey)
Collection
Supreme Court Judgments
Date
1987-06-25
Report
[1987] 1 SCR 1045
Case number
18561
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 18561
Decision Content
R. v. Smith, [1987] 1 S.C.R. 1045
Edward Dewey Smith Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General for Ontario Intervener
indexed as: r. v. smith
File No.: 18561.
1985: December 10; 1987: June 25.
Present: Dickson C.J. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment ‑‑ Minimum sentence for importing narcotics notwithstanding degrees of seriousness of the offence ‑‑ Whether or not minimum sentence cruel and unusual punishment contrary to s. 12 of Charter ‑‑ If so, whether or not justifiable under s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 12 ‑‑ Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 5(2).
Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada contrary to s. 5(1) of the Narcotic Control Act. Before submissions on sentencing were made the accused challenged the constitutional validity of the seven‑year minimum sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. 7 , 9 and 12 of the Charter . 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. He nevertheless imposed an eight‑year sentence. The Court of Appeal ruled that s. 5(2) was not inconsistent with the Charter and found the sentence imposed to be appropriate. 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. 7 , 9 and 12.
Held (McIntyre J. dissenting): The appeal should be allowed.
Per Dickson C.J. 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.
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 mandatory minimum sentence will oblige the judge to impose a cruel and unusual punishment and thereby is a prima facie violation of s. 12; if it is, it must be reconsidered under s. 1 as to purpose and any other considerations relevant to determining whether the impugned legislation may be salvaged.
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. 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. The court in assessing whether a sentence is grossly disproportionate must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to determine what range of sentences would have been appropriate to punish, rehabilitate, deter or protect society from this particular offender. The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. The determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles and whether valid alternative punishments exist, are all guidelines, not determinative of themselves, to help assess whether a sentence is grossly disproportionate. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual.
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 . A minimum mandatory term of imprisonment is not in and of itself cruel and unusual. The Legislature may provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter . A guilty verdict under s. 5(1) , however, will inevitably lead to the imposing of a totally disproportionate term of imprisonment for s. 5(1) covers many substances of varying degrees of danger, totally disregards the quantity imported and treats as irrelevant the reason for importing and the existence of any previous convictions. The effect of the minimum is to insert the certainty that, in some cases, a violation will occur on conviction. It is this certainty, and not just the potential, which causes s. 5(2) to violate prima facie s. 12. The minimum must, subject to s. 1, be declared of no force or effect.
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 Char‑ ter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 .
The section, too, cannot be salvaged under s. 1 of the Charter . The first criterion under s. 1 was met: the fight against the importing and trafficking of hard drugs is an objective of sufficient importance to override a constitutionally protected right. The second criterion‑‑proportionality of the means chosen‑‑was not met. The minimum will surely deter people from importing narcotics. However, it is not necessary to sentence the small offenders to seven years in prison in order to deter the serious offender.
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". The mandatory imposition of the minimum seven‑year sentence provided in s. 5(2) of the Narcotic Control Act on a youthful offender with no previous record would contravene s. 12 of the Charter in that it would be a cruel and unusual punishment "so excessive as to outrage standards of decency". 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 arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter . The seven‑year 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. Its arbitrary imposition will inevitably result in some cases in a legislatively ordained grossly disproportionate sentence.
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. Sections 9 and 12 are not mutually exclusive.
Per 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 s. 12 of the Charter and for this reason the words "but not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect. Notwithstanding his conclusion to the contrary, the test for cruel and unusual punishment under s. 12 of the Charter should generally be that of McIntyre J., including his approach to the application of disproportionality and arbitrariness. Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter .
The mandatory minimum sentence of seven years' imprisonment cannot be held to be valid on its face because of the general seriousness of the offence created by s. 5(1), subject to the power of a court to find that it is constitutionally inapplicable in a particular case. Such an approach must be rejected because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the mandatory minimum sentence provision might have in particular cases. 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 multi‑faceted phenomenon.
With respect to the question of interest or standing, an accused should be recognized as having standing to challenge the constitutional validity of a mandatory minimum sentence, whether or not, as applied to his case, it would result in cruel and unusual punishment. In such a case the accused has an interest in having the sentence considered without regard to a constitutionally invalid mandatory minimum sentence provision.
Per 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.
Per McIntyre J. (dissenting): Section 12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing or with related social problems. 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. Parliament retains, while acting within the limits so prescribed, a full discretion to enact laws and regulations concerning sentencing and penal detention. 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. In so doing, the courts will apply the general principles of sentencing accepted in the courts in an effort to make the punishment fit the crime and the individual criminal.
The Charter right to be free from cruel and unusual punishment or treatment is absolute. The concept is a "compendious expression of a norm" drawn from evolving standards of decency and has been judicially broadened to encompass not only the quality or nature of punishment but also extent or duration under the heading of proportionality. (Proportionality is to be determined on a general rather than an individual basis.) 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.
A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one or more of the following characteristics:
(1) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;
(2) The punishment goes 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; or
(3) The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards.
Appellant would not be able to show that the minimum punishment in s. 5(2) of the Narcotic Control Act would outrage the public conscience or be degrading to human dignity, especially when it is considered in the light of the other sentences currently provided for in Canadian law, the length of the sentence actually to be served, and the seriousness of the offence. This sentence did not go beyond what is necessary to achieve the valid social aim of deterring the traffic in drugs; Parliament considered the matter carefully and extensively and there was a want of evidence before the Court as to adequate alternatives capable of realizing this valid social aim. Finally, this punishment was imposed in accordance with standards or principles rationally connected to the purposes of the legislation.
Parliament, in legislating a minimum sentence, merely concluded that the gravity of the offence alone warranted that sentence. The legislation does not restrain the discretion of the trial judge to weigh and consider the circumstances of the offence in determining the length of sentence and it cannot be considered arbitrary and therefore cruel and unusual.
As far as arbitrariness may arise in the actual sentencing process, judicial error will not affect constitutionality and would, ordinarily, be correctable on appeal.
Appellant could not succeed under s. 7 of the Charter . Section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter . These rights cannot be read so broadly as to render other rights nugatory, and for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12.
Cases Cited
By Lamer J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; considered: Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, aff'g [1975] 6 W.W.R. 1, (1975), 24 C.C.C. (2d) 401; R. v. Shand (1976), 30 C.C.C. (2d) 23, rev'g (1976), 29 C.C.C. (2d) 199; referred to: Bell v. The Queen, [1983] 2 S.C.R. 471; R. v. Konechny (1983), 10 C.C.C. (3d) 233; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Dick, Penner and Finnigan, [1965] 1 C.C.C. 171; Ex parte Kleinys, [1965] 3 C.C.C. 102; Re Laporte and The Queen (1972), 8 C.C.C. (2d) 343; R. v. Natrall (1972), 32 D.L.R. (3d) 241; Ex parte Matticks (1973), 15 C.C.C. (2d) 213 (S.C.C.), aff'g (1972), 10 C.C.C. (2d) 438; Pearson v. Lecorre, Supreme Court of Canada, October 3, 1973, unreported; R. v. Hatchwell, [1976] 1 S.C.R. 39, affirming (1973), 14 C.C.C. (2d) 556; Re Rojas and The Queen (1978), 40 C.C.C. (2d) 316; R. v. Buckler, [1970] 2 C.C.C. 4; Dowhopoluk v. Martin (1971), 23 D.L.R. (3d) 42; R. v. Roestad (1971), 5 C.C.C. (2d) 564; McCann v. The Queen, [1976] 1 F.C. 570, 29 C.C.C. (2d) 337; Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193; Re Moore and The Queen (1984), 10 C.C.C. (3d) 306; Belliveau v. The Queen, [1984] 2 F.C. 384, 13 C.C.C. (3d) 138; Piche v. Solicitor‑General of Canada (1984), 17 C.C.C. (3d) 1; R. v. Langevin (1984), 11 C.C.C. (3d) 336; R. v. Morrison, Ont. Co. Ct., Judge Mossop, July 7, 1983, unreported; In re Gittens, [1983] 1 F.C. 152, 68 C.C.C. (2d) 438; R. v. Tobac (1985), 20 C.C.C. (3d) 49; R. v. Simon (No. 3) (1982), 69 C.C.C. (2d) 557; R. v. Kroeger (1984), 13 C.C.C. (3d) 277; R. v. Krug (1982), 7 C.C.C. (3d) 324; R. v. Slaney (1985), 22 C.C.C. (3d) 240; R. v. Randall and Weir (1983), 7 C.C.C. (3d) 363; R. v. Lewis (1984), 12 C.C.C. (3d) 353; R. v. Lyons (1984), 15 C.C.C. (3d) 129; R. v. Guiller, Ont. Dist. Ct., Borins Dist. Ct. J., September 23, 1985, unreported; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Wilson J.
Referred to: Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
By McIntyre J. (dissenting)
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; North Carolina v. Pearce, 395 U.S. 711 (1969); Gooding v. Wilson, 405 U.S. 518 (1971); Hobbs v. State, 32 N.E. 1019 (1893); McCann v. The Queen, [1976] 1 F.C. 570, 29 C.C.C. (2d) 337; Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, aff'g [1975] 6 W.W.R. 1, (1975), 24 C.C.C. (2d) 401; R. v. Bruce, Wilson and Lucas (1977), 36 C.C.C. (2d) 158; In re Gittens, [1983] 1 F.C. 152, 68 C.C.C. (2d) 438; Re Mitchell and The Queen (1983), 6 C.C.C. (3d) 193; Re Moore and The Queen (1984), 10 C.C.C. (3d) 306; R. v. Tobac (1985), 20 C.C.C. (3d) 49; Trop v. Dulles, 356 U.S. 86 (1958); R. v. Shand (1976), 30 C.C.C. (2d) 23; Re Konechny (1983), 10 C.C.C. (3d) 233; R. v. Langevin (1984), 11 C.C.C. (3d) 336; Coker v. Georgia, 433 U.S. 584 (1977); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (1978); Solem v. Helm, 463 U.S. 277 (1983); Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 433 U.S. 584 (1977); R. v. Shand (1976), 29 C.C.C. (2d) 199 (Ont. Co. Ct.); Watts v. Indiana, 338 U.S. 49 (1949); Roncarelli v. Duplessis, [1959] S.C.R. 121; R. v. Simon (No. 1) (1982), 68 C.C.C. (2d) 86; Levitz v. Ryan, [1972] 3 O.R. 783.
Statutes and Regulations Cited
Bill of Rights, (Eng.), 1 Wm. & M. sess. 2, c. 2, s. 10.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(a), (b).
Canadian Charter of Rights and Freedoms , ss. 1 , 2( a ) , 7 , 9 , 12 .
Constitution Act, 1982 , s. 52 .
Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 219, 294, 303, 306, 325, 361.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), art. 3.
International Covenant on Civil and Political Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc A/6316 (1966), art. 7.
Motor Vehicle Act, R.S.B.C. 1979, c. 288.
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 2, 4, 5(1), (2).
Parole Act, R.S.C. 1970, c. P‑2, s. 15, as am.
Parole Regulations, SOR/78‑428, ss. 5, 9, as am.
Penitentiary Act, R.S.C. 1970, c. P‑6, s. 24, as am.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc A/810, at 71 (1948), art. 5.
Authors Cited
Berger S. "The Application of the Cruel and Unusual Punishment Clause Under the Canadian Bill of Rights" (1978), 24 McGill L.J. 161.
Canada. Canadian Sentencing Commission. Report of the Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa. Canadian Government Publishing Centre, 1987.
Tarnopolsky, W. S. "Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?" (1978), 10 Ottawa L. Rev. 1.
APPEAL from a judgment of the British Columbia Court of Appeal (1984), 11 C.C.C. (3d) 411, 39 C.R. (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. Appeal allowed, McIntyre J. dissenting.
A. P. Serka and Ann Cameron, for the appellant.
S. David Frankel and James A. Wallace, for the respondent.
John C. Pearson, for the intervener the Attorney General for Ontario.
The judgment of Dickson C.J. and Lamer J. was delivered by
Lamer J.‑‑
Introduction
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. 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. 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 cold‑blooded non‑users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. However, a judge who would sentence to seven years in a penitentiary a young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass", would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge.
Yet, there is a law in Canada, s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, that gives no judge in the land any other choice.
5. (1) Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic.
(2) Every person who violates subsection (1) is guilty of an indictable offence and is liable to imprisonment for life but not less than seven years.
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. However, the potential that such a person be charged with importing is there lurking. Added to that potential is the certainty that upon conviction a minimum of seven years' imprisonment will have to be imposed. 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.
The appellant returned to Canada from Bolivia with seven and a half ounces of 85 to 90 percent pure cocaine secreted on his person. 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.
The Issue
The following constitutional question which was stated by the Chief Justice is, as a result of appellant's having abandoned all others at the hearing, the only issue in this Court:
Whether the mandatory minimum sentence of seven years prescribed by s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N‑1 is contrary to, infringes, or denies the rights and guarantees contained in the Canadian Charter of Rights and Freedoms , and in particular the rights contained in ss. 7, 9 and 12 thereof?
For reasons I will give later I will address only s. 12 of the Charter . Since the appellant does not dispute the constitutionality of the maximum penalty of life imprisonment but only the minimum seven years' imprisonment, the question in issue is therefore limited to whether the concluding six words of s. 5(2) of the Narcotic Control Act will, under certain circumstances, leave the judge no other alternative but that of subjecting those convicted under the section to cruel and unusual punishment.
The Legislation
Importing
Importing has been judicially defined as fol‑ lows in Bell v. The Queen, [1983] 2 S.C.R. 471, per McIntyre J., speaking for the majority, at pp. 488‑89:
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.
In separate reasons, Dickson J., as he then was, agreed with this definition; his disagreement was on another aspect of the notion of importing, which is irrelevant to this case.
A Narcotic
A narcotic is defined at s. 2 of the Act:
2. ...
"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. The schedule covers a wide variety of drugs which range, in dangerousness, from "pot" to heroin.
The purpose of the importing, namely whether it is for trafficking or for personal consumption, and the quantity imported are irrelevant to guilt under s. 5. For example, the serious hard drugs dealer who is convicted of importing a large quantity of heroin and the tourist convicted of bringing a "joint" back into the country are treated on the same footing and must both be sentenced to at least seven years in the penitentiary.
Canadian Bill of Rights
Section 2(a) and (b) of the Bill states:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;
(b) impose or authorize the imposition of cruel and unusual treatment or punishment;
Canadian Charter of Rights and Freedoms
Sections 7 , 9 and 12 of the Charter guarantee the following rights:
7. 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.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The Judgments
County Court of Vancouver
After pleading guilty before Wetmore Co. Ct. J., the accused challenged the constitutional validity of the seven‑year minimum sentence found in s. 5(2) of the Narcotic Control Act as being inconsistent with the provisions of ss. 7 , 9 and 12 of the Charter and requested that the judge make a determination in that regard before submissions on sentencing were made. The trial judge in his reasons ((1983), 35 C.R. (3d) 256) disposed of ss. 7 and 9 as follows, at p. 258:
Counsel did not press the argument under s. 7 of the Charter . On the issue of arbitrariness, s. 9, I conclude in the interests of judicial comity that the argument is resolved in favour of the Crown in R. v. Newall (1982), 70 C.C.C. (2d) 10, 141 D.L.R. (3d) 26, 2 C.R.R. 156 (B.C.S.C.). 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.
The gist of Wetmore Co. Ct. J.'s reasoning concerning s. 12 is in the following passage of his judgment, at p. 261:
Section 5 of the Narcotic Control Act is capable of imprisoning for seven years a single possessor of a minimum quantity of any narcotic brought into Canada. It purports to leave a sentencing judge powerless to relieve against the harshness of such a sentence.
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. That domestic possessor would be unlikely to face any imprisonment, or at most modest incarceration. Given that situation, the disparity is so gross it is shocking to contemporary society, is unnecessary in narcotic control and results, therefore, in a punishment which is cruel and unusual.
Accordingly, I propose to treat the concluding words "but not less than seven years" in s. 5(2) of the Narcotic Control Act inoperable as being in contravention of s. 12 of the Charter , and hence beyond the power of Parliament.
It appears to me that his conclusion rests upon the potential disproportionality of the mandatory sentence when considering the range of offences, the variety of ways the offence may be committed, and the great disparity of the sentence with that imposed on others who have committed offences identical in gravity and nature. Having made this determination, he then held a pre‑sentence hearing and imposed a sentence of eight years in the penitentiary.
The Court of Appeal
Smith's appeal was dismissed by the Court of Appeal for British Columbia ((1984), 11 C.C.C. (3d) 411). Craig J.A. relied on R. v. Konechny (1983), 10 C.C.C. (3d) 233, also a decision of the British Columbia Court of Appeal. In that case, it was decided that the seven day minimum sentence mandatorily imposed by the Motor Vehicle Act, R.S.B.C. 1979, c. 288, on those found guilty of driving their vehicle while knowing that their licence was suspended, was not inconsistent with ss. 9 and 12 of the Charter . He also relied on R. v. Shand (1976), 30 C.C.C. (2d) 23, a decision of the Ontario Court of Appeal under the Canadian Bill of Rights. The Court there found that the seven‑year minimum in s. 5(2) of the Narcotic Control Act, the same provision under consideration in this appeal, was "not so disproportionate to the offence that the prescribed penalty [was] cruel and unusual". In the present case Craig J.A. found that the section was not inconsistent with the Charter and, of the opinion that the eight‑year sentence imposed by Wetmore Co. Ct. J. was appropriate, he dismissed the appeal from sentence.
Macdonald J.A. agreed with Craig J.A., but expanded somewhat on the scope and meaning of s. 9. In that regard, he quoted a passage from R. v. Konechny, supra, where Macfarlane J.A., said at p. 254:
The courts have been given the power under s. 52 of the Constitution Act, 1982 to review, and in appropriate cases to strike down legislation. But that does not mean that judges have been authorized to substitute their opinion for that of the Legislature which under our democratic system is empowered to enunciate public policy. The basis for such policy may be reviewed if the policy is said to conflict with individual rights under the Charter , but, in my opinion, the policy ought not to be struck down, in the case of a challenge under s. 9, unless it is without any rational basis. 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.
Macdonald J.A., obviously referring to the words "capricious, unreasonable or unjustified", then added, at p. 434:
I agree with that passage with the reservation that those three words should not be taken as a complete definition of arbitrariness.
In conclusion, he said at p. 434:
The correct approach is, in my view, indicated in the passage which I have quoted from Mr. Justice Macfarlane's judgment. Employing it here, and considering what was said in R. v. Shand with respect to the enactment of s. 5(2) of the Narcotic Control Act I am not persuaded that it violates either s. 7 or s. 9 of the Charter .
Thus he found, as did Craig J.A., that the sentence was appropriate.
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. He summarized his reasons at p. 425 of his judgment:
In short, the effect of s. 5(2) is that guilt or innocence on a charge of importing or exporting a narcotic is determined judicially by a judge or jury, but the sentence is not determined by a judge or a jury, but is predetermined by Parliament. That predetermination by Parliament pays no attention to the individual offender or the circumstances of his offence. In that respect the determination is arbitrary, and the resulting imprisonment is arbitrary imprisonment.
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 . This is understandable, as the decision of the Court of Appeal in this case was delivered long before this Court's decision in R. v. Oakes, [1986] 1 S.C.R. 103. In any event, Lambert J.A. was not satisfied by the Crown's efforts to salvage the section. However, he chose not to make an order "declaring s. 5(2) of the Narcotic Control Act, or the last six words of it, to be unconstitutional", and decided only that s. 5(2) was not applicable to the accused Smith. He would have imposed a sentence of five years' imprisonment.
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. 9 and 7 of the Char‑ ter. I rather welcome this opportunity as I prefer not to address s. 9, given the proceedings throughout. Indeed, little or nothing was really argued as regards s. 7, while argument under s. 9 was rather limited. Of course, Lambert J.A. dealt thoroughly and exclusively with s. 9. His conclusion that a predetermination of a sentence by Parliament is arbitrarily imposed, if right, would mean that all minimum sentences are invalid and probably also all maximum sentences.
Furthermore, s. 7 was not really considered in relation to s. 9. This is understandable as at the time this Court had not yet handed down its decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, wherein the relationship between s. 7 and ss. 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. 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. Finally, there are fixed and minimum sentences to be found throughout provincial laws and any decision striking down minimum sentences per se would affect all those laws. Yet only one attorney general intervened. I imagine this might be so because cases under s. 5(2) of the Narcotic Control Act are instituted and prosecuted by the "Federal Crown". Whatever be the reason, I should not want to decide the validity of all minimum sentences under s. 9 without the benefit of a thorough discussion on these issues and without any argument being made under s. 1 of the Charter .
Cruel and Unusual Punishment
History
We in Canada adopted through the preamble of our Constitution the legislative restraint set out in s. 10 of the English Bill of Rights of 1688, 1 Wm. & M. sess. 2, c. 2, which states:
10. That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. [Emphasis added.]
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. I know of no reported instances where the courts invoked that part of s. 10 of the English Bill of Rights.
Article 7 of the International Covenant on Civil and Political Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966) is also worthy of note. It provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Experience in other countries regarding the Covenant and the Optional Protocol, to which Canada acceded in 1976, may on occasion be of assistance in attempting to give meaning to relevant provisions of the Charter . However, I am not aware of any international jurisprudence on the interpretation of art. 7 that would be of assistance to us in the present appeal, as most of the cases that have addressed the provision have dealt with the conditions of imprisonment or the type of treatment to which those being detained are subject.
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), and art. 5 of the Universal Declaration of Human Rights (G.A. Res. 217 A (III), U.N. Doc. A/810 (1948), at 71) also provide similar protection against cruel or inhuman punishment but, here too, little assistance can be had for the present appeal.
It is not until the enactment of our own Canadian Bill of Rights, more particularly s. 2(b), that the courts addressed the meaning of those very words, cruel and unusual punishment. Even though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. Indeed, in the majority of cases, the courts summarily rejected the s. 2(b) argument without giving any reasons. (See R. v. Dick, Penner and Finnigan, [1965] 1 C.C.C. 171 (Man. C.A.); Ex parte Kleinys, [1965] 3 C.C.C. 102 (B.C.S.C.); Re Laporte and The Queen (1972), 8 C.C.C. (2d) 343 (Que. Q.B.); R. v. Natrall (1972), 32 D.L.R. (3d) 241 (B.C.C.A.); Ex parte Matticks (1972), 10 C.C.C. (2d) 438 (Que. C.A.), affirmed by (1973), 15 C.C.C. (2d) 213 (S.C.C.); Pearson v. Lecorre, S.C.C., Oct. 3, 1973, unreported; R. v. Hatchwell (1973), 14 C.C.C. (2d) 556 (B.C.C.A.), affirmed by [1976] 1 S.C.R. 39; Re Rojas and The Queen (1978), 40 C.C.C. (2d) 316 (Ont. 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] 2 C.C.C. 4 (Ont. Prov. Ct.), and Dowhopoluk v. Martin (1971), 23 D.L.R. (3d) 42 (Ont. H.C.)), or dismissed out of deference to Parliament's wisdom in enacting the challenged legislation (R. v. Dick, Penner and Finnigan, supra, and R. v. Roestad (1971), 5 C.C.C. (2d) 564 (Ont. Co. Ct.))
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. The only decision finding a treatment or punishment to be cruel and unusual under the Canadian Bill of Rights was McCann v. The Queen, [1976] 1 F.C. 570.
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. In his view, the treatment served no "positive penal purpose", and even if it did, "it [was] not in accord with public standards of decency and propriety". Furthermore, in his opinion, there existed "adequate alternatives" to the treatment.
The Court of Appeal for British Columbia decided, in R. v. Miller and Cockriell (1975), 24 C.C.C. (2d) 401, that the death penalty for murder was not cruel and unusual punishment.
Emphasizing the non‑constitutional nature of the Canadian Bill of Rights, Robertson J.A., speaking for Farris C.J.B.C. and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". 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.
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. In his opinion, the words "cruel and unusual" were to be read disjunctively so that "cruel punishments however usual in the ordinary sense of the term could come within the proscription". He emphasized the need for a deterrent value in