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while Nasogaluak "did away with those," he says. In the past, addressing such state transgressions might simply have resulted in an increase in the time credited in remand or awaiting sentencing. Whitling says "one of the interesting parts about this case" is when excessive use of force by the state can be seen as a Charter violation. "That issue is not crystal clear and is still not crystal clear," but it is clear that it can result in a Charter violation. B.C. defence lawyer Marvin Stern is quick to pick up on the impact Nasogaluak lends to client cases. "The door is open," he says, to going below the mandatory minimum. "How wide it has been opened — that was not determined in the case." But Nasogaluak does allow lawyers to lean inward hoping for entry. Stern gives an example of an individual who was charged with an offence where there was no mandatory minimum. The case was adjourned for lack of court time and before it began again, the Crown added a second charge with a mandatory minimum. "I foresee making a charge that is an abuse of process," says Stern, adding the remedy might be a sentence reduction extending into or beyond the mandatory minimum. Despite new boundaries created on and off the bench by mandatory minimums, many lawyers see problems with mandatory minimums that attempt uniformity in sentencing. "Not everyone [convicted] has the same degree of moral culpability," says Johnson. He maintains that more accused who might have entered a guilty plea with consideration for the circumstances are now fighting a charge, especially if there is associated jail time or loss of driving privileges. "They feel they have nothing to lose," he says. "You are spending a ton of time on appeals" and what may once have been a short court appearance is now magnified into a longer trial and/or appeal, further clogging the court system. Johnson points to another difficulty. "It changes a justice system," he says. With the judge's discretionary abil- ity removed there is more pressure on attempts to plea bargain around a man- datory minimum. Ruby puts it more suc- cinctly: "It's a right-wing American trend that snatches power from the judges ntitled-1 1 and gives it to the prosecutors." Johnson states, "Mandatory minimums don't work, there is clear evidence of that. Instead, they serve a political purpose." Yet, mandatory minimums continue to creep into Canadian law, limiting how judges can deal with individuals. The newly passed Bill C-25 now limits the amount of time judges can credit to accused held in detention prior to sentencing. Under the new system, Quicklaw® judges will credit time on a one-to-one basis with some flexibility to increase that to one-and-half times in exceptional cases. The former ratio was two-to-one, with the ability to increase to a three-to- one ratio. Crediting the prisoner extra time prior to sentencing was seen as a reflection of lack of facilities and according to the federal justice material, a means of reducing inmate populations. Research Solutions To know is essential. To Know More is powerful. LexisNexis® Quicklaw® Criminal Essentials Get Halsbury's® Laws of Canada, Butterworths® Texts and Treatises, Forms & Precedents, The Canada Digest and other exclusive online content. FOR A FREE TRIAL call 1-800-255-5174 or visit www.lexisnexis.ca/freetrial LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths and Halsbury's are registered trademarks of Reed Elsevier (U.K.) Limited and its affiliated companies. Quicklaw is a registered trademark of LexisNexis Canada Inc. © 2010 LexisNexis Canada Inc. All rights reserved. www. C ANADIAN Law ye rmag.com M AY 2010 49 4/16/10 9:35:31 AM