Page 30 - Magistrates Conference 2019

concerned with the mandatory death penalty, Lord Bingham observed at
paragraph 37 that the need for proportionality and individual sentencing is not
confined to capital cases.

10. In Reyes, Lord Bingham referred to R v Smith (Edward Dewey) [1987] 1 SCR
1045, a leading case from the Supreme Court of Canada. In that case, the
appellant pled guilty to importing seven and a half ounces of cocaine into
Canada under the Narcotics Control Act. Section 5 (2) of the Act provided a
minimum mandatory sentence of seven years imprisonment. The Supreme
Court had to decide the issue of whether the mandatory minimum sentence
provided for by the Act was compatible with section 12 of the Canadian Charter
of Rights and Freedoms. Section 12 provided that “Everyone has the right not to

be subjected to cruel and unusual punishment”.

11. The Supreme Court of Canada recognised that in some cases (and perhaps the
case under appeal) seven years imprisonment for such an offence would be
appropriate, but held the provision to be incompatible with section 12 because it
would in some cases be grossly disproportionate to the gravity of the offence.

The court noted that 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 for certain offences without infringing section 12 of the Charter.

12. A guilty verdict under section 5 (2) however, will inevitably lead to the imposing
of a totally disproportionate term of imprisonment, for section 5 (2) totally
disregards the quantity imported and treats as irrelevant the reason for
importing and the existence of any previous convictions: per Dickson CJ and

Lamer J. The seven –year minimum sentence while not per se cruel and unusual,
becomes cruel and unusual 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 disproportionate
sentence.

13. Wilson J stated that: “section 12 of the Charter though primarily concerned with
the nature or type of punishment or treatment, 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 by section 5 (2) of the Narcotics Act on a youthful offender