|
|
104. In the present case, the appellant submits that the minimum sentence of seven years' imprisonment, under s. 5(2) of the Narcotic Control Act, is arbitrary, because it "must be imposed by the trial judge without regard to the type or amount of narcotic imported or exported, nor its intended use, nor to the criminal history or background of the accused". In other words, the appellant is arguing that legislation which restrains the discretion of the trial judge to weigh and consider the circumstances of the offender and the circumstances of the offence in determining the length of sentence is arbitrary and, therefore, cruel and unusual. In my view, this proposition cannot be accepted. It would, under the guise of protecting individuals from cruel and unusual punishment, unduly limit the power of Parliament to determine the general policy regarding the imposition of punishment for criminal activity. It would, in effect, constitutionally entrench the power of judges to determine the appropriate sentence in their absolute discretion. It is true, in general, that when a judge imposes a sentence, he considers the nature and gravity of the offence, the circumstances in which it was committed, and the character and criminal history of the offender, all with an eye to the primary purposes of punishment: rehabilitation, deterrence, incapacitation, and retribution. But, as I noted earlier, sentencing is an imprecise procedure and there will always be a wide range of appropriate sentences. For some offences, the protection of the public will be paramount and little weight will be given to the possibility of rehabilitating the offender. On other occasions, the gravity of the offence alone may dictate that a severe punishment be imposed as, for example, in the case of first degree murder. There will still be other offences and circumstances where the punishment will be based primarily upon the possi‑ bility of rehabilitation. In setting the minimum sentence at seven years for importing narcotics, Parliament has determined that the gravity of the offence, the protection of the public, and the suppression of the drug trade are of paramount importance and that, consequently, the circumstances of the particular accused should be given relatively less weight. This legislative determination does not transform the sentencing procedure into an arbitrary process. Under s. 5(2) of the Act, punishment continues to be imposed for reasons which are rationally connecte
|