Case R v. Smith Edward Dewey [1987] 1 SCR 1045

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.

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 facieinfringes 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, 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.

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.