The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50829
LEGAL REPORT: CRIMINAL LAW AND FORENSICS "It's a right-wing American trend that snatches power from the judges and gives it to the prosecutors." — CLAYTON RUBY could not go below the mandatory mini- mum on the impaired charge and did not allow the discharge. However, it upheld the finding for excessive force and imposed a statutory minimum fine of $600 for a first offence. The appeal court held that since there wasn't a man- datory minimum for evading a police officer, it wouldn't interfere with the trial judge's sentence. The Supreme Court unanimous- ly upheld the appeal decision despite the Crown arguing the court erred in upholding findings of fact and finding a violation under s. 7. LeBel's reasons clarified main areas that judges consider when crafting a "fit" in sentencing or devising a remedy. The first was stray- ing from what is a normal or average sentence given out versus a set manda- tory minimum threshold. "Sentencing judges, while they can order a sentence outside the general range set by case law as long as it is in accordance with the principles and objectives of sentencing, cannot override a clear statement of legislative intent and reduce a sentence below a statutory mandated minimum, absent a declaration that the minimum sentence is unconstitutional," he rea- soned. "Although in some exceptional cases a sentence reduction outside statu- tory limits may be possible under s. 24(1) of the Charter as the sole effective rem- edy for egregious misconduct by state agents," he wrote, but he did not believe Nasogaluak fell into this category. The ruling is seen as a chink in barriers imposed by mandatory minimums. Ruby maintains it sets out for the first time that in "narrow circumstances" relating to Charter application "the minimum is not evoked." "It's only a framework, no more than a framework and in narrow and unusual circumstances, you can go below the minimum," says Ruby. Nasogaluak is seen as extending 2000's R. v. Ferguson, which maintained that letting sentencing fall below the man- datory minimums would be unlawful interference with the role of Parliament. Nasogaluak essentially provides balance in that the Charter is the overriding document against all laws set forward by parliamentarians or legislators and must be measured. Graham Johnson, the Edmonton defence lawyer who argued the appeals in Nasogaluak with senior partner Laura Stevens, says the ruling thwarts the Crown's attempt to lock down manda- tory minimums as firm barriers. "The courts in their deliberating have decided that they do not want to close the door to the idea that you can never go below the mandatory minimum as a Charter remedy," he says. Johnson notes another element that has come out of Nasogaluak — seek- ing redress or remedy for a state or police transgression outside the Charter. "Where there has been inappropriate contact by the state, a sentence can be dramatically reduced without a cumber- some Charter application," he says. LeBel based his reasons not on s. 24(1) but on the Criminal Code. "Section 718.2(a) of the Code provides that a court should reduce a sentence 'to Find the R. v. Nasogaluak ruling online at scc.lexum.umontreal. ca/en/2010/2010scc6/2010scc6.html account for any relevant . . . mitigating circumstances relating to the offence or the offender.' It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender's Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence." LeBel's ruling says the Charter's "over- arching values and principles" provide a proper sentencing application. "I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offend- er. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents." Nasogaluak is not a victory for the Crown as it clearly indicates the courts can weigh the state's conduct as much as the accused in forging a "fit" sentence. Nathan Whitling of Parlee McLaws LLP in Edmonton, representing the Criminal Trial Lawyers' Association, calls it an "excellent" decision clarifying several aspects of the law. "The court confirmed that when a prisoner's rights are violated in the course of his arrest, the courts can take that into account and reduce the sentence as a remedy for those violations," says Whitling, adding it has been done in the courts in the past, but not been affirmed at the SCC level. The 1995 Ontario Court of Appeal ruling in R. v. Glykis originally set "severe restrictions on such a remedy" 48 M AY 2010 www. C ANADIAN Law ye rmag.com Untitled-1 1 12/15/09 10:32:55 AM