R. v. SMITH (EDWARD DEWEY) [1987] 1 S.C.R 1987: Minimum sentence for importing narcotics notwithstanding degrees of seriousness of the offence -- Whether or not minimum sentence cruel and unusual punishment

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,.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

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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

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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.

 

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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.
9*] 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.

 

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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

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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.

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