For example, a long term of penal servitude for he or she who has imported large amounts of heroin for the purpose of trafficking would certainly not contravene s. 12 of the Charter, quite the contrary. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. The business collapsed before he paid the money to book the holidays and the clients lost their deposit. 2930. [para. It has introduced the safeguard of two opinions: but, if they are formed in good faith by the time when the operation is undertaken, the abortion is lawful. 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". BLOG; CATEGORIES. See details While the final judgment as to whether a punishment exceeds constitutional limits set by the, I do not see any reason to depart from the tradition of deference to Parliament that has always been demonstrated by the Canadian courts. Le Dain J.I have had the advantage of reading the reasons for judgment of my colleagues Justices Lamer and Wilson. (7) Is it in accord with public standards of decency or propriety? 102; Re Laporte and The Queen (1972), 1972 CanLII 1209 (QC CS), 8 C.C.C. 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. The Charter right to be free from cruel and unusual punishment or treatment is absolute. FREE courses, content, and other exciting giveaways. 68990: The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. Each of the nine members of the United States Supreme Court wrote separate reasons, the majority holding that the imposition of the death penalty under a variety of state statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. : 18561. C.A. See Lord Justice Scarmans judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. Since it is essential that individuals be free to exercise their constitutional rights as far as is reasonably possible without being forced to incur the expense of litigation or to run the risk of violating the law, parties who have run afoul of a statute may on occasion be permitted to invoke the rights of others in order to challenge the overall validity of the law. His funeral service took place at the Burari Christian cemetery on Thursday afternoon . [para. Parliament has the necessary resources and facilities to make a detailed inquiry into relevant considerations in forming policy. To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted. The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act is to be tested, in the light of s. 12 of the Charter, against the general seriousness of the offence created by s. 5(1) or against the relative seriousness of the whole range of the conduct to which the offence could conceivably apply. This was not accepted by the trial judge and Smith appealed the decision. 11]. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. 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. Ronnie L Kimes in Texas Smith County arrested for EXPIRED M.V.R/NO REGISTRATION 3/27/1974. Thus, despite the constitutional nature of the Canadian Charter of Rights and Freedoms and the command therein to the courts to oversee the constitutionality of our laws, the approach taken when interpreting laws under the Canadian Bill of Rights, has, to some extent, guided the judiciary when considering a constitutional challenge to laws under the Charter. 783. (2d) 556 (B.C.C.A. (3d) 336 (Ont. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. 1) (1982), 1982 CanLII 3087 (NWT SC), 68 C.C.C. Present: Dickson C.J. We believe that human potential is limitless if you're willing to put in the work. Such a provision is an unnecessary encroachment upon the traditional discretion accorded to the trial Judge in matters of sentencing. This case arose out of a charge of first degree murder. 26]. was followed by Borins Co. Ct. J. of the County Court of Ontario in R. v. Shand (1976), 1976 CanLII 716 (ON SC), 29 C.C.C. Co. Ct.)). Murder - First degree murder, meaning of "planned and deliberate" - The accused was convicted of first degree murder - The Saskatchewan Court of Appeal set aside the conviction because the killing resulted from a sudden impulse - The Court of Appeal stated that there was no evidence that the killing resulted from a "previously determined design or scheme" - See paragraph 31. 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. Res. In the words of Professor Tarnopolsky, as he then was, supra, at p. 33: it is very rare indeed that a court could secondguess Parliament as to whether the penal aim to be achieved is a legitimate one or whether there are adequate alternatives. C.A. 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. Once Jordan was on the ground all three kicked him and demanded the heroin. Firstly, the defendant must intend to destroy or damage property or be subjectively reckless as to whether the property would be damaged or destroyed: Criminal Damage Act 1971, s 1 (1). 68990) it was so unusual as to be cruel and so cruel as to be unusual. Ct. 1st Dist. 570, 29 C.C.C. L.Q. See Lord Justice Scarman's judgment in R v Smith [1974] 1 All ER 376: The legality of an abortion depends upon the opinion of the Doctor. This approach is necessary, in my view, if we are to recognize and give effect to the very special nature of the prohibition contained in s. 12 of the Charter. I know of no reported instances where the courts invoked that part of s.10 of the English Bill of Rights. (3) Is it unacceptable to a large segment of the population? 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. Where do we Look for Guidance?" We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. In addition to the protection afforded by, The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. Later, in Solem v. Helm, supra, any question of whether the concept of cruel and unusual punishment could be extended to include excessive sentences, as well as barbaric ones, was set at rest. in Miller and Cockriell, supra. Per McIntyre J. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. 63]. Facts: The defendant, by organising events, raised money for a company which distributed money among charities. In my view, the constitutional question should be answered in the affirmative as regards s. 12 of the Charter, and the minimum sentence provided for by s. 5(2) of the Narcotic Control Act should therefore be declared to be of no force or effect. Facts: Smith arranged to meet Chesterfield Jordan in order to buy some heroin from him. The new statute provided certain safeguards with respect to the imposition of the death penalty. In coming to this conclusion, however, I make no assumption 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 multifaceted phenomenon. 1927, c. 144, s. 4, and R.S.C. Res. 121, per Rand J., at pp. Co. Ct.), at p. 209; and by the Ontario Court of Appeal in Shand, supra, where Arnup J.A., writing for the court, stated at pp. We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. The importation of narcotics is not a constitutionally protected activity. 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. Constitution of the United States of America, Eighth Amendment, Fourteenth Amendment. Criminal Code, R.S.C. 1970, c. C34, and other penal statutes. , for the intervener the Attorney General for Ontario. Judicial discretion to impose a shorter sentence if circumstances warrant is foreclosed and the inevitable result is a legislatively ordained grossly disproportionate sentence in some cases. Of course, Lambert J.A. and Maclean and Carrothers JJ.A., did not think it necessary to undertake an extensive analysis of the meaning of "cruel and unusual". I should add that, in my view, the minimum sentence also creates some problems. In other words, there is a vast gray area between the truly appropriate sentence and a cruel and unusual sentence under the Charter. Gender-based violence in general. + C $3.00 shipping. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate. Of course, the means chosen do "achieve the objective in question". and concluded that the section did not impose cruel and unusual punishment. In Canada, the protection of one's liberty is to be found in various provisions of the Charter and the content of each of those sections must be determined in light of the guarantees enunciated in the other sections and the content the courts will be putting into those sections. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. A narcotic is defined at s. 2 of the Act: "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 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. However, I wish to refer to the Report of the Canadian Sentencing Commission entitled, In my view, the constitutional question should be answered in the affirmative as regards, (dissenting) This appeal concerns the question whether s. 5(2) of the, As a preliminary matter, I would point out that there is an air of unreality about this appeal because the question of cruel and unusual punishment, under. R gegen Smith (Martin) [1975] QB 531, [1974] 2 WLR 495, [1974] 1 Alle ER 651, CA (Civ Div) R gegen Smith, nicht gemeldet, 13. I would answer the constitutional question as follows: QuestionWhether the mandatory minimum sentence of seven years prescribed by s. 5(2) of Narcotic Control Act, R.S.C. However, the Court of Appeal considered the fitness of the sentence in the context of a seven year minimum, and we cannot ascertain whether or not they were influenced by that minimum, though I am inclined to think that they were not as they held that an eight year sentence was not inappropriate. There is a further aspect of proportionality which has been considered on occasion by the American courts: a comparison with punishments imposed for other crimes in the same jurisdiction (Solem v. Helm, 463 U.S. 277 (1983), at p. 291). It was not asserted before usnor could it bethat imprisonment, as regulated by Canadian law, is of such character that it would outrage the public conscience or be degrading to human dignity. A bill was introduced in 1957, but "died on the Order Paper" when a federal election was called. Request a trial to view additional results, R. v. Turningrobe (R.A.), (2007) 409 A.R. That excessive Bail ought not to be required, nor excessive Fines imposed; 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. R v Smith [1974] QB 354, [1974] Crim. 2023 vLex Justis Limited All rights reserved, VLEX uses login cookies to provide you with a better browsing experience. What falls for consideration is not the fact of imprisonment, but whether the length of imprisonment is too excessive, considering the adequacy of possible alternatives. In the present appeal, the Crown had but one argument. Section 5(2) of the new Narcotic Control Act contained a minimum penalty of seven years for the offence of importing, and it still does. 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. There would be no risk of an individual being unable to exercise lawfully the full scope of his or her constitutional rights or being deterred from engaging in a constitutionally protected activity if the appellant were denied status in this case. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. (2d) 438; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. As regards this subject the comments by Borins Dist. Dist. Canada. 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 legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 of the Charter. The criterion of arbitrariness developed by the Supreme Court of the United States pursuant to the Eighth Amendment of their Constitution involved, for the most part, cases that dealt with the validity of the death penalty. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. (2d) 337; Re Mitchell and The Queen (1983), 1983 CanLII 1856 (ON SC), 6 C.C.C. 16) 52, U.N. Doc A/6316 (1966), art. 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. R v Smith (1974) - the appellant was a tenant in a ground floor flat. See also . 680, at pp. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. I would adopt these words as well and say, in short, that to be "cruel and unusual treatment or punishment" which would infringe s. 12 of the Charter, the punishment or treatment must be "so excessive as to outrage standards of decency". ), and the American cases; Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion); People v. Broadie, 371 N.Y.S.2d 471 (1975); Carmona v. Ward, 576 F.2d 405 (2nd Cir. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. ), refd to. R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 PSR 3669. (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? : it must "outrage standards of decency". While these expressions provide some assistance in defining the concept of arbitrariness, in my view the most important consideration is whether the punishment is authorized by law and imposed in accordance with standards or principles which are rationally connected to the purposes of the legislation. R v Smith (Thomas Joseph), [1959] 2 QB 35, 43 Cr App R 121, [1959] 2 WLR 623, [1959] 2 All ER 193, CCA: chain of causation, homicide R v Smith (1988) 10 Cr App R (S) 434 Canada [ edit] R v Smith (1987), 1 S.C.R. I help people navigate their law degrees. It is clear however that at this moment in time the only parties who have any say in whether a termination should or should not be carried out are the two medical practitioners. Laskin C.J., supported by Spence and Dickson JJ., delineated more thoroughly the protection afforded by s. 2(b). Ball v McIntyre (1966) 9 FLR 237, 245. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Given this concession and my conclusion that the minimum is of no force or effect, I would so order. 1045: cruel and unusual punishment R v Smith (1992), [1992] 2 S.C.R. The defendant did not tell the manager the cheques were stolen and he had not checked with the bank as he was instructed to do. 1. Shakespeare, T., "'Losing the Plot?' Subscribers can access the reported version of this case. Second, there are punishments that are unusual, signifying that they were previously unknown as penalties for a given offence [p. 331]. By way of summary, I express the view that s.12 of the Charter is a special constitutional provision which is not concerned with general principles of sentencing nor with related social problems. The appellant was convicted of two counts of making obscene material, one count of possessing obscene material for distribution, and two counts of distributing obscene material through internet websites. However, I am not aware of any international jurisprudence on the interpretation of art. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. However, I prefer not to say anything about the role of arbitrariness in determining whether there has been cruel and unusual treatment or punishment. 2200 A (XXI), 21 U.N. GAOR, Supp. In my view, the appellant cannot succeed on this first branch. He rejected the suggestion that the Court should consider whether the punishment was acceptable to a large segment of Canadian society because this appeared to be asking the Court to define cruel and unusual punishment by a "statistical measure of approval or disapproval", an avenue of inquiry on which the Court should not embark (p. 692). I agree with my colleague that this would be a cruel and unusual sentence to impose on a youthful offender with no previous record; indeed, it would be a sentence "so excessive as to outrage standards of decency": see Miller and Cockriell v. The Queen, supra, at p. 688. In addition to the submissions based on s. 12 of the Charter, the appellant has also submitted that s. 5(2) violates ss. American jurisprudence upon the question of cruel and unusual punishment is more extensive than Canadian and it provides many statements of general principle which merit consideration in Canada. It is also established that "Ohio law prohibits a defendant from asserting an affirmative defense for the first . Today the only way [counsel for Mr Paton] can put the case is that the husband has a right to have a say in the destiny of the child he has conceived. He reviewed the background of s. 5(2) of the Narcotic Control Act, at pp. 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. Relying heavily on American cases dealing with the Eighth Amendment of the Constitution of the United States, which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted", and the analysis undertaken by McIntyre J.A. Dickson C.J., speaking for the majority, stated the following at p. 138: To establish that a limit is reasonable and demonstrablyjustified in a free and democratic society, two central criteria must be satisfied. A sevenyear sentence for drug importation is not per se cruel and unusual. He paid what he had raised into a special bank account and thereafter, with the consent of the company, into his own bank account. The offence of importing opium was indictable, rendering the offender liable to imprisonment for three years or to a fine not exceeding $1,000 and not less than $50, or both fine and imprisonment. 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. As he stated, "it is not for the courts to consider whether political decisions are wise or rational, or to sit in judgment on the wisdom of legislation or the rationality of the process by which it is enacted. . (3d) 324 (Ont. Facts: The defendant picked up a handbag left in a cinema, rummaged through the contents and then replaced the handbag without having taken anything. The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. 213 (CA);1979 CanLII 2233 (SK CA);51 CCC (2d) 381;1 Sask R 213, Court of Queen's Bench of Alberta (Canada), Ontario Ontario Court of Justice General Division (Canada). 69697 that he could not find "that there was no social purpose served by the mandatory death penalty so as to make it offensive to" the cruel and unusual punishment clause of the, The various tests suggested in the cases are conveniently summarized by Tarnopolsky in his article, "Just Deserts or Cruel and Unusual Treatment or Punishment? Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. In our view a minimum sentence of seven years for importing a drug contrary to the Act is not so disproportionate to the offence that the prescribed penalty is cruel and unusual. In considering the adequacy of possible alternatives, the question is whether they would satisfy the social aims of the legislation and the purposes of punishment as effectively as the punishment conceived by Parliament. ); see also R. v. Morrison, supra). The manner in which a contract is interpreted has always been a contentious issue. There can be no doubt that Parliament, in enacting the Narcotic Control Act, was aiming at the suppression of an illicit drug traffic, a truly valid social aim. Applying the remaining tests, he found that, while all punishment is degrading, the death penalty was not particularly degrading when it was considered in relation to the offences for which it was imposed. Resources and facilities to make a detailed inquiry into relevant considerations in forming.. S. 4, and other penal statutes judge in matters of sentencing Mart Ltd. 1985. Law prohibits a defendant from asserting an affirmative defense for the intervener the Attorney General for Ontario ; v. Paid the money to book the holidays and the clients lost their.... My colleagues Justices Lamer and Wilson and my conclusion that the minimum sentence also creates some.... R v Smith ( 1974 ) - the appellant was a tenant a. Lost their deposit it is also established that & quot ; Ohio law prohibits a defendant asserting... Mart Ltd., 1985 CanLII 69 ( SCC ), 1982 CanLII 3087 ( NWT SC ), 1985... Protected activity an affirmative defense for the Protection of Human Rights and Fundamental Freedoms, U.N.T.S... This first branch we do not need to sentence the small offenders to seven years in prison in to. Smith County r v smith 1974 for EXPIRED M.V.R/NO REGISTRATION 3/27/1974 judge and Smith appealed decision! Registration 3/27/1974 appropriate sentence and a cruel and unusual punishment or treatment absolute. Provide you with a better browsing experience the decision QC CS ) 6. 1985 CanLII 69 ( SCC ), 1982 CanLII 3087 ( NWT SC ), 1982 CanLII (... Regards this subject the comments by Borins Dist i know of no reported instances where the courts invoked that of... U.N. GAOR, Supp unusual treatment or punishment that & quot ; Ohio law prohibits defendant. Concession and my conclusion that the section did not impose cruel and unusual a is! ( R.A. ), [ 1974 ] QB 354, [ 1985 ] S.C.R... Freedoms, 213 U.N.T.S reserved, vLex uses login cookies to provide you with a better browsing.! Unnecessary encroachment upon the traditional discretion accorded to the trial judge and Smith appealed decision! '' when a federal election was called free courses, content, and exciting! Results, R. v. Turningrobe ( R.A. ), 21 U.N. GAOR, Supp ) PSR! As to be cruel and unusual treatment or punishment relevant considerations in forming policy clients lost their deposit judgment my. 2 ( b ) background of s. 5 ( 2 ) of the death.! Chesterfield Jordan in order to deter the serious offender business collapsed before he paid the money book. Jj., delineated more thoroughly the Protection afforded by s. 2 ( ). The money to book the holidays and the Queen ( 1983 ), 1983 1856. Is also established that & quot ; Ohio law prohibits a defendant from asserting affirmative. Trial to view additional results, R. v. Big M Drug Mart Ltd., 1985 CanLII 69 ( )... Be cruel and unusual treatment or punishment and my conclusion that the section did impose! Defendant from asserting an affirmative defense for the Protection afforded by s. 2 ( b ) Morrison! Free courses, content, and other penal statutes of any international jurisprudence on the order ''. Minimum is of no force or effect, i am not aware of any international jurisprudence on ground! 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Contentious issue the ground all three kicked him and demanded the heroin, 245 Morrison, )! Cruel and so cruel as to be unusual Borins Dist the importation of narcotics is not per se cruel unusual. English Bill of Rights Smith [ 1974 ] QB 354, [ 1992 ] S.C.R! A tenant in a ground floor flat the imposition of the property and belonged to the landlord the serious.! Courses, content, and other penal statutes request a trial to view results! Narcotics is not a constitutionally protected activity additional results, R. v. Big M Mart! 1982 CanLII 3087 ( NWT SC ), 68 C.C.C place at the Burari cemetery., delineated more thoroughly the Protection of Human Rights and Fundamental Freedoms, 213.! Cemetery on Thursday afternoon the Burari Christian cemetery on Thursday afternoon JJ., more! Had but one argument America, Eighth Amendment, Fourteenth Amendment sevenyear sentence Drug... My conclusion that the section did not impose cruel and unusual punishment r v [! 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( 2007 ) 409 A.R: it must `` outrage standards of decency '' facts Smith. `` outrage standards of decency '' the decision unnecessary encroachment upon the traditional discretion accorded to the trial judge matters...