Basic Facts and Summary of the Decision in the case R.V Smith

Basic Facts and Summary of the Decision in the Vase R. V. Smith

The case R. V. Smith in Bickenbach’s Canadian Cases in the Philosophy of Law discusses punishment. In particular, two sections of the Charter of Rights and Freedoms are being discussed. Section 9 states that everyone has the right not to be arbitrarily detained or imprisoned, while section 12 states that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. In short, The discussion is about in which way these two sections can place a limitation on punishment in Canada.

In the R. V. Smith case the two above mentioned sections from the Charter were brought up by the accused. He was charged with section 5(2) from the federal Narcotic Control Act, which states a mandatory minimum of seven years upon a conviction for importing a narcotic substance. Smith challenged this section to be constitutionally invalid.

The trial judge first found that a prescribed punishment of 7 years is cruel and unusual and therefore constitutionally invalid. However the appellant was pleaded guilty of importing seven and a half ounces of cocaine into Canada contrary to s. 5(2) and was imposed an eight-year sentence. The Court of Appeal ruled the sentence imposed to be appropriate, but found that s. 5(2) was not inconsistent with the Charter. The question imposed on the Supreme Court of Canada was whether or not s. 5(2)of the Narcotic Control Act was contrary to the Charter, and in particular, to ss. 9 and 12.

The reasoning for the final decision by the Supreme Court of Canada was made upon a longer discussion about the two sections of the Charter and how they interact.

The appellant argued that the fact that the judge is restrained to weigh and consider the circumstances of the offender and the circumstances of the offense in determining the length of sentence is arbitrary and, therefore, cruel and unusual. A seven years minimum sentence is not per se grossly disproportional but it might be in the mild example with importation or exportation of a small quantity of mild narcotics for personal use.

Several ways to define when a punishment will be cruel and unusual and in violation with s. 12 of the Charter was discussed and the following characteristics were given:

(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.

Mr. Justice McIntyre argues against the appellant, that s. 5(2) does not have any of these characteristics. He argues that the appellant would have to show that the length of the sentence would outrage the public conscience or be degrading to human dignity, and the fact that sentences of seven years are imposed daily for a verity of offenses under the Criminal Code emphasize his statement that any of the above mentioned does not apply.

He further argues that s. 5(2) is not arbitrary because it is not op to the judge system to limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. Sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. For some offenses, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. In setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offense, the protection of the public, and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the particular accused should be given relatively less weight.

Ms. Justice Wilson argues against Mr. Justice McIntyre and states that s. 12 is not confined to punishments which are in their nature cruel. It also extends to punishments which are, "grossly disproportionate". The Term “cruel and unusual” are given emphasis in that in their dis proportionality, no one, not the offender and not the public, could possibly have thought that that particular accused' offense would attract such a penalty. She goes on to saying that it is the fact that the seven-year sentence must be imposed regardless of the circumstances of the offense 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.

Ms. Justice Wilson moves on to s. 9 and states that, punishments may undoubtedly be cruel and unusual within the meaning of s. 12 without being arbitrarily imposed. Punishments may be arbitrary within the meaning of s. 9 without also being cruel and unusual. But there is no important reason to keep the two sections mutually exclusive. This particular case is a case where the arbitrary nature of the legislatively prescribed minimum sentence must inevitably in some cases result in the imposition of a cruel and unusual punishment.

In conclusion the Supreme Court of Canada finally declares the words “but not less than seven years” in s. 5(2) of the Narcotic Control Act of no force or effect. This was after concluding that section 1 of the Charter cannot override section 12 in this case.

Does the decision rely on what you believe to be right theory of punishment? Why? Why not?

In the R. V. Proulx case, in Bickenbach’s Canadian Cases in the Philosophy of Law, a theory of punishment having six objectives is given. Based on this theory of punishment I will discuss what I believe to be the right theory of punishment. Finally, I will consider whether the decision in the R. V. Smith case can be supported by what I find is right.

Let us first consider the six objectives from R. V. Proulx.

In Canada all punishments have to be consistent with these six legal objectives. In short, they are: 1) Denunciation, 2) deterrence, 3) separation, 4) rehabilitation, 5) reparation and 6) responsibility.

If we look more in to the general purpose of the objectives, the three first objectives are in favor of keeping law and order in a society. It is fair to say that these objectives of punishment are to be called “societal preventive.” They are more of a warning and can speak for a prescribed sentence of 7 years, as in the R. V. Smith case, because this harsh and consistent punishment can say to have societal preventive effect in form of the warning effect. It clearly emphasizes the protection of the public and the seriousness of drug trade.

However this kind of punishment does not leave much room for individual preventive initiatives as certain circumstances in a case or the accused might need certain treatment in the form of rehabilitation.

The last three objectives, which I will describe as individually preventive, are more concerned with rehabilitation, sense of responsibility, repair of wrong doings and overall the individual needs. These objectives are best achieved by deciding all cases on individual basis and by giving specific punishments. They are, therefore, in conflict with s. 5(2) that prescribes a seven years sentence without giving a judge the possibility to weigh and consider the circumstances of the offender and the circumstances of the offense in determining the length of the sentence. Depending on which of the objectives are valued highest, the punishment may vary. If the three first objectives are valued the highest, one can in general expect a harsher and more consistent punishment than if the three last objectives are valued highest.

All six objectives are important to have in mind when providing a sentence. With a focus on the three last objectives, a punishment that is not harsher than necessary is better obtained because the focus will be on the individual needs. When that said, a feeling of fairness and strong legislative power might be impossible to obtain if the first three objectives are completely excluded.

An important point to make is that the judge should never impose a punishment that is harsher than necessary, and therefore, the focus must be on the three last objectives. I believe they serve a better “positive penal purpose”. It is also in the interest of the public to have a punishment that, if possible results in a person that will not break the law again. Many studies show that incarceration does not meet the wanting rehabilitative goals or broader public goals and therefore will further point in the direction of other alternatives and more individual applied punishments that can help rehabilitate the offender.
The purpose to deter the offender and other future criminals by for instance having a harsh sentence like section 5(2) is after my opinion to put too much weight on one objective and fail to meet the purpose of the individual preventive and the other objectives. Besides I don’t think that deterrence has a real influence on hard criminals. These people are not in a position where they will stop and think about the years in prison for committing the curtain crime.
In the R. V. Smith case, section 5(2) of the criminal code sets out a mandatory minimum sentence of seven years upon a conviction for importing narcotic. This harsh punishment is more in concern with the goal to deter the offender and others and is valuing the three first objectives. I do not believe that it meets the last three objectives at all.

To have a mandatory punishment for a crime that can vary a lot in individual cases seems harsh in the milder case of importing a small amount of narcotics for self usage. The only reasoning for having a prescribed sentence like section 5(2) is to have a harsh predictable punishment so future similar offenders can be deterred by knowing what to expect from breaking the law.

As for the right theory of punishment, I believe that this way of preventing crime is not the most effective. In fact, I in general believe fixed or minimum sentences to be without the wanting effect in the way that they can easily be completely wrong, because there is limited room for individually considerations. The arguing for having these types of sentences should be in purpose of keeping uniformity in the penal system and in order to deter future offenders.

However, harsh fixed minimum sentences is not what will stop offenders from committing crimes. Deterrence probably has the best effect on abiding citizens and often fails to prevent the real criminals from committing crime. Adding to this is that a lot of research implies that prison is not helping these criminals back into society. Actually, prison might rather make a criminal more iof a threat to society than in actually helping to rehabilitate them. Thus, having a hard minimum sentence on seven years in prison does not have the wanting effect of deterring the real criminals and sending them to prison after committing the crime, and also does not either help in rehabilitating them back into society.

I therefore agree with the final decision in the R. V. Smith case. I think it was right to recognize that a minimum sentence of seven years upon a conviction for importing a narcotic substance is harsh and unusual, and I am in agreement with the argument that each case should have to be judged and completely individually sentenced, because each of the circumstances in each case may vary greatly.