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LEGAL REPORT: CRIMINAL LAW AND FORENSICS limiting credit for time served in remand, such thresholds are being seen as steadily eroding judicial discretion. The most notable wave washing ashore on judicial benches was seen in the Conservatives' Tackling Violent Crime Act (Bill C-2 passed in 2008). The government is ratio- nalizing mandatory minimums as the public's desire to see more uniformity in sentencing practices. But the price of such sentencing "fits," more solidly entrenched in the U.S., is taking its own toll on the Canadian justice system. The issue has triggered mandatory minimums A A chink in BY JEAN SORENSEN s mandatory sentences are becoming more com- mon and with Bill C-25 and civil rights lawyer Clayton Ruby, an intervener for the Criminal Lawyers' Association in Nasogaluak. "We have a government that does not like judges and does not trust judges," he says. Nasogaluak, though, also debate over just how solid the mandatory minimum rule is. The Supreme Court of Canada's R. v. Nasogaluak ruling has become a focal point as it tries to answer that question in the context of judicial discretion and how upholding mandatory sentencing may collide with the Charter of Rights and Freedoms. Yet, Nasogaluak tackles only one of three key areas affected by manda- tory minimums. It sheds light on where judicial discretion lies as judges are faced with crafting remedies and apply- ing sentences that attempt to "fit" the crime, meet societal expectations, the Criminal Code's sentencing require- ments, and Parliament. It does little to answer questions such as how they affect the accused held in remand cen- tres and the impact on the convicted individual after the trial. draws attention since it deals with mandatory sentences and constitutional issues over sen- tence reductions due to state transgressions. Nasogaluak stems from the May 12, 2004 Leduc, Alta., arrest of Lyle Nasogaluak, a young Inuit and Dene male stopped by RCMP for impaired driving after a high-speed chase. He resisted arrest and was punched in the head and the lower back before being taken to the police station for a breathalyzer. Although crying, expressing pain, and stating he couldn't breath, he was given no medical atten- tion until his release the next Supreme Court Justice Louis LeBel reasons in Nasogaluak that: "A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law." Government intrusion, forceful or not, has drawn sharp criticism from the legal community. In 2007, retired Quebec justice John Gomery called the Conservative government's move to improve mandatory minimums for drug offences (bill C-15) a "slap in the face" to judges, suggesting they cannot craft their own remedies for individual cases. The comments are not far off the mark of those of Toronto criminal morning when he entered a hospital and doctors found he had a perforated and collapsed lung requiring immediate surgery. At trial, Nasogaluak entered guilty pleas on both counts but argued his rights under ss. 7, 1(d), and 12 of the Charter had been violated. The Court of Queen's Bench ruled excessive force had violated his s. 7 rights. The trial judge deviated from the standard six- to 18-month jail sentence normally given for the two offences, sentencing him to a conditional discharge and a one-year driving suspension. On the Crown's appeal, the Alberta Court of Appeal stated the trial judge www. C ANADIAN Law ye rmag.com M AY 2010 47 KATHRYN JANKOWSKI