R. v. Tobac, (1985) 60 A.R. 253 (NWTCA)

• Judge: McClung, Harradence and Kerans, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: May 06, 1985
• Jurisdiction: Northwest Territories
• Citations: (1985), 60 A.R. 253 (NWTCA)

R. v. Tobac (1985), 60 A.R. 253 (NWTCA)

MLB headnote and full text

R. v. Tobac

(#458 N.W.T.)

Indexed As: R. v. Tobac

Northwest Territories Court of Appeal

McClung, Harradence and Kerans, JJ.A.

May 6, 1985.

Summary:

The accused was convicted of assault with intent to wound. He was sentenced to one year imprisonment plus probation and was ordered under s. 98(1) of the Criminal Code of Canada not to possess firearms for five years. He appealed the firearm prohibition on the ground that it was cruel and unusual punishment, claiming that he needed a rifle to live on the land as a trapper and hunter. He actually did little of either.

The Northwest Territories Court of Appeal dismissed the appeal. The court held that the prohibition was not cruel and unusual punishment to the accused and that there was insufficient evidence to consider whether s. 98(1) of the Code was invalid in the face of s. 12 of the Charter.

Civil Rights - Topic 8508

Canadian Charter of Rights and Freedoms - Enforcement - Who may apply - The Northwest Territories Court of Appeal held that any Canadian has status to attack the validity of a statute under the Charter on the ground that it affects rights granted to others by the Charter - See paragraphs 6 to 7.

Civil Rights - Topic 8548

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Cruel and unusual treatment or punishment - Charter, s. 12 - An Indian man was imprisoned for assault and was ordered not to possess a firearm for five years - He claimed that the prohibition order was cruel and unusual punishment, because he needed a rifle to work on the land as a trapper and hunter - He did little of either, partly because he was often in jail - The Northwest Territories Court of Appeal held that the prohibition order was not cruel and unusual punishment in the circumstances.

Civil Rights - Topic 8548

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Cruel and unusual treatment or punishment - Charter, s. 12 - The Northwest Territories Court of Appeal stated that the words "cruel and unusual" were interacting expressions coloring each other and must be considered together as a compendious expression of a norm - See paragraphs 9 to 10 - The court considered whether the mandatory nature of s. 98(1) providing for prohibition orders rendered it cruel and unusual - See paragraphs 13 to 15 - The court refused to consider whether s. 98(1) violated s. 12 of the Charter, because of the lack of evidence on the issue - See paragraphs 16 to 17.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - The Northwest Territories Court of Appeal refused to consider whether s. 98(1) of the Criminal Code of Canada providing for mandatory prohibition orders in certain offences violated s. 12 of the Charter, because there was a lack of evidence on the issue - See paragraphs 16 to 17.

Criminal Law - Topic 5799

Punishments - Prohibition orders - Respecting firearms - Charter, s. 12 - An Indian man was imprisoned for assault and was ordered not to possess a firearm for five years - He claimed that the prohibition order was cruel and unusual punishment, because he needed a rifle to work on the land as a trapper and hunter - He did little of either, partly because he was often in jail - The Northwest Territories Court of Appeal held that the prohibition order was not cruel and unusual punishment in the circumstances - The court refused to consider whether s. 98(1) violated s. 12 of the Charter by authorizing cruel and unusual punishment, where there was a lack of evidence on the issue - See paragraphs 16 to 17.

Cases Noticed:

R. v. Big M. Drug Mart (1983), 49 A.R. 194; 28 Alta. L.R.(2d) 289, affd. 58 N.R. 81; 60 A.R. 161 (S.C.C.), refd to. [para. 7].

R. v. Miller and Cockriell (1976), 11 N.R. 386; 31 C.C.C.(2d) 177, consd. [para. 10].

R. v. Dick, [1965] 1 C.C.C. 171 (C.A.), refd to. [para. 10].

R. v. Bruce, Wilson and Lucas (1977), 36 C.C.C.(2d) 158 (B.C.S.C.), refd to. [para. 10].

R. v. Shand (1976), 35 C.R.N.S. 202 (Ont. C.A.), refd to. [para. 10].

Gittens and R., Re (1982), 68 C.C.C.(2d) 438 (F.C.T.D.), refd to. [para. 10].

Attorney General of Canada v. Pattison (1981), 30 A.R. 83; 59 C.C.C.(2d) 142 (Alta. C.A.), refd to. [para. 12].

Southam Inc. v. Hunter (1984), 55 A.R. 291; 55 N.R. 241 (S.C.C.), consd. [para. 14].

R. v. Konechny, [1984] 2 W.W.R. 481 (B.C.C.A.), consd. [para. 15].

Furman v. State of Georgia (1972), 408 U.S. 283, consd. [para. 15].

R. v. Smith (1983), 35 C.R.(3d) 256 (B.C.C.C.), affd. 39 C.R.(3d) 305 (B.C.C.A.), refd to. [para. 15].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 12 [para. 9].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 98(1) [para. 8]; sect. 610(1)(e)(ii) [para. 2].

Counsel:

G.M. Bickert and Bernard Fontaine, for the Crown respondent;

Peter Fuglsang, for the appellant, John Tobac.

This case was heard before McClung, Harradence and Kerans, JJ.A., of the Northwest Territories Court of Appeal.

The judgment of the Court of Appeal was delivered on May 6, 1985, and the following opinions were filed:

Kerans, J.A. - see paragraphs 1 to 18;

McClung, J.A. - see paragraphs 19 to 21.

Harradence, J.A., concurred with Kerans, J.A.